Friday, January 18, 2008

Our Dysfunctional Republic Part 14

In my last segment I covered the 3rd through the 8th amendments. As I stated, I would now like to cover instances where I feel these particular amendments have been violated. I hope to provide clear examples of how our rights have been infringed upon due to legislation passed in support of the War On Terror.

Before I begin I would like to get something off my chest. Ben Franklin once said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Our Bill of Rights was written to guarantee us certain liberties and we have become so apathetic that we have allowed our government to trample all over them. We have been brainwashed by our government and the media into believing that these laws have been passed to prevent us from once again being attacked by terrorists. Too many of us have fallen for that nonsense and either because we were afraid, or because we felt it was in our patriotic duty, we have supported legislation that has taken from us many of those liberties, and as a observant writer to CNN recently said, "Liberty is like virginity, once it's gone, it's gone for good."

Folks, our Constitution, including the Bill of Rights, is there for a reason. It is not some document to be taken for granted. We cannot allow our government to trample all over it. After all, if it that document had never been written the government would have absolutely no power and authority in the first place. If we allow them to pick and choose which portions of the Constitution they wish to heed we may as well just forget about being a free people and accept that we are servants to our government, the exact opposite of what our founders envisioned.

Jack Cafferty, of CNN recently wrote a book entitled, It's Getting Ugly Out There. In it he made an interesting point. He said that it was 8 years between the first terrorist attack upon the World Trade Center, and the 9/11 attacks. In that time frame we had no Patriot Act, no Military Commissions Act, No Violent Radicalization and Homegrown Terrorism Prevention Act. Who is to say that any of these Acts passed by the Bush administration has done anything to make us any safer? Our ports and borders are still not secured. How can we say that we are not just as vulnerable now to a terrorist attack as we were before they were passed? We can’t, that is the problem. The only thing we can say is that in the course of fighting this War on Terror, we have given up liberties that our founders thought were so important that they wrote specific amendments to the Constitution to ensure that they never be infringed upon. If you don’t believe me, continue reading and then judge for yourself. I only ask you to do so with an open mind. Set aside your party loyalties, your ideas of patriotism, and just examine the facts. Remember that the Constitution is the Supreme Law of the Land, and that no law can be written which violates any portion of the Constitution. Compare what the legislation says and how it goes against what the Bill of Rights says. The end does not justify the means. So after reading what I have to say, you tell me, who is our real enemy, Al Qaeda or our own government.

We have been the target of terrorists for many years, dating back to way before 9/11. The attacks upon our embassies, the Marine Barracks, and the hostage situation in Iran being among the first attacks by radical Islamic groups against U.S. interests. So to say that 9/11 was the beginning of our War on Terror would be a lie.

In 1996 President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. This was our governments first attempt by our government to limit the writ of habeas corpus. Habeas corpus is a legal action in which a person can seek relief from unlawful detention. It is a fundamental principle of justice in our country since its formation and the courts have ruled on it extensively and have determined so.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed the fact that the Supreme Court has “recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969)."

It is therefore vitally important that we as a citizenry watch for any attempt to infringe upon the writ of habeas corpus. Yet in 1996 AEDPA, as signed by President Clinton made an impact upon habeas corpus in the federal courts. One provision of AEDPA limits the power of federal judges to grant relief unless the state court’s adjudication of the claim resulted in a decision that was 1) contrary to, or involved in an unreasonable application of clearly established federal law as determined by the Supreme Court or 2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

Yet it wasn’t until 9/11 that a full scale assault upon our freedoms and liberties was initiated by our government, under the guise of fighting a War on Terror.

The first Act signed into law after the attacks of 9/11 was, House Resolution 3162, otherwise known as the Patriot Act. I wonder how many people realize that the Patriot Act was signed into law before a copy was even available for Congress to discuss and amend? Not that our legislators read every bill they pass, but something of this magnitude should have been read before it was passed into law.

In sections 202 & 216 of the Patriot Act, the government now has the authority to monitor your internet traffic, read your e mails and intercept all your cell phone calls, if they suspect that you are committing a crime. No warrant is required. This violates the Fourth Amendment to the Constitution in that no warrant was ever issued for the gathering of personal information. You may have heard of this practice by the phrase warrantless searches. Whatever you know it as, it is illegal and a violation of your rights as guaranteed in the fourth amendment.

From the text of the Patriot Act, Section 216, “Upon an application made under section 3122(a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”

An ex parte order is a Latin legal term which means, ‘from (by or for) one party”. An ex parte order is decided by a judge without requiring all of the parties to the controversy to be present. In other words, it is a legal proceeding brought by one party against another without representation or notification of the other parties.

Section 213 of the Patriot Act also violates the fourth amendment, in that it allows our government to pursue investigations and searches without the use of a warrant. Section 213 states,

“(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--

`(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);

`(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

`(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'.”

This is otherwise known as the Sneak and Peek Provision which allows any federal law enforcement agency to enter your home or business without you being present to collect evidence and they do not ever have to tell you they have been there. Again, this is a clear violation of the fourth amendment, in that we may be subjected to searches without the benefit of a warrant explaining what exactly we are being searched for.

However under the Foreign Intelligence Surveillance Act, or FISA, the government can obtain warrants directly from a special court that requires almost no evidence or probable cause. Passed by Congress in late 1970s, FISA describes it itself and the criminal wiretap statutes as "the exclusive means by which electronic surveillance . . . may be conducted." Yet the Patriot Act nullifies this act by giving the government the power to tap your phones without a warrant.

Section 225 of the Patriot Act grants immunity to anyone who aids the government in obtaining any information on any citizen by the warrantless wiretaps upon your phone or computer. “(h) No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this Act.'.”

Section 311 of the Patriot Act allows for the government to monitor your financial transactions as well. “The Secretary of the Treasury may require any domestic financial institution or domestic financial agency to maintain records, file reports, or both, concerning the aggregate amount of transactions, or concerning each transaction, with respect to a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts if the Secretary finds any such jurisdiction, institution, or class of transactions to be of primary money laundering concern.” This portion of the Patriot Act is of concern to me personally as I have sent a large quantity of money to the Philippines to help my wife’s family subsist and for medical treatments. The Philippines is a known haven for terrorists, particularly Abu Sayyaf, and I am sure my banking records have been searched without my knowledge.

Again, the Patriot Act provides immunity for those who provide such information to the government in any investigation into a persons financial activity. Section 313 states,

“(b) COOPERATION AMONG FINANCIAL INSTITUTIONS- Upon notice provided to the Secretary, 2 or more financial institutions and any association of financial institutions may share information with one another regarding individuals, entities, organizations, and countries suspected of possible terrorist or money laundering activities. A financial institution or association that transmits, receives, or shares such information for the purposes of identifying and reporting activities that may involve terrorist acts or money laundering activities shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision thereof, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is the subject of such disclosure, or any other person identified in the disclosure, except where such transmission, receipt, or sharing violates this section or regulations promulgated pursuant to this section.”

Not only can they now monitor your banking transactions, they have place restrictions upon the banks for notifying you that your account has been under investigation. Section 351 of the Patriot Act states,

`(A) IN GENERAL- If a financial institution or any director, officer, employee, or agent of any financial institution, voluntarily or pursuant to this section or any other authority, reports a suspicious transaction to a government agency--
`(i) the financial institution, director, officer, employee, or agent may not notify any person involved in the transaction that the transaction has been reported; and
`(ii) no officer or employee of the Federal Government or of any State, local, tribal, or territorial government within the United States, who has any knowledge that such report was made may disclose to any person involved in the transaction that the transaction has been reported, other than as necessary to fulfill the official duties of such officer or employee.

Finally in Section 802 of the Patriot Act, the term domestic terrorist is redefined in a manner which could include anyone who disagrees with the actions of our government and actively tries to change the course this nation has taken, myself included.

From section 802 we read,
(a) DOMESTIC TERRORISM DEFINED- Section 2331 of title 18, United States Code, is amended--
(1) in paragraph (1)(B)(iii), by striking `by assassination or kidnapping' and inserting `by mass destruction, assassination, or kidnapping';
(2) in paragraph (3), by striking `and';
(3) in paragraph (4), by striking the period at the end and inserting `; and'; and
(4) by adding at the end the following:
`(5) the term `domestic terrorism' means activities that--
`(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
`(B) appear to be intended--
`(i) to intimidate or coerce a civilian population;
`(ii) to influence the policy of a government by intimidation or coercion; or
`(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
`(C) occur primarily within the territorial jurisdiction of the United States.'.

As you can see, there were many violations, mostly to the fourth amendment, found in the Patriot Act. Fortunately the Patriot Act was written to sunset, or expire, after a certain amount of time. Unfortunately our government has signed into law, Patriot Act II, or the Domestic Security Enhancement Act of 2003.

Patriot Act II is just as bad, if not worse than the original. Section 312 further dismantles court review of surveillance by terminating court approved limits upon police spying on religious and political activity. Sections 126, 128, and 129 allow the government to obtain credit and library records secretly and without judicial oversight. Section 201 allows the government to authorize secret arrests, which is a clear violation of fifth amendment. Sections 120 and 121 expands the definition of terrorism so that organizations engaged in civil disobedience are at risk of being wiretapped. Section 322 gives foreign dictators the power to seek searches and seizures within the United States, and section 321 allows them to extradite American citizens to face trial in foreign courts.

Unfortunately for us, the Patriot Act is not the only action that has been taken in the War on Terror which has infringed upon our liberties as contained in the Bill of Rights. On October 17, 2006 President Bush signed into law Public Law 109-364, or the "John Warner Defense Authorization Act of 2007" (H.R.5122). According to Senator Patrick Leahy (D Vermont) this bill will actually encourage the President to declare martial law within the United States.

This new law revises the Insurrection Act, (10 U.S.C. 331-335) and subverting the principle of the Posse Comitatus Act, (18 U.S.C.1385). The Insurrection Act and the Posse Comitatus Acts limit the presidents ability to station troops anywhere within the U.S.

The Posse Comitatus Act clearly states, "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both," . This would include the President, if he calls in to service the National Guard to uphold disturbances or violations of public law.

Section 1076 of the John Warner Defense Authorization Act is specifically titled, Use of the Armed Forces in Major Public Emergencies. Section 333 states, "Major public emergencies; interference with State and Federal law" states that "the President may employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of ("refuse" or "fail" in) maintaining public order, "in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy."

The John Warner Defense Authorization Act basically gives the president to commandeer the National Guard, over the objections of the state governors, and station them anywhere within the U.S. to quell uprisings. In short, declare martial law. While this does not directly violate any of the amendments to the Constitution covered by this segment, its implications are far reaching in that the president now has the authority to declare martial law and basically suspend the rest of our liberties as contained in the Constitution. Sound far fetched?

In 2005, the Washington Post reported that NORTHCOM had developed battle plans for martial law in the U.S. One document entitled CONPLAN 2005, envisioned 15 different scenarios where these plans could go into effect.

NewsMaxx in November of 2003 reported that General Tommy Franks has said that if the U.S. was ever hit with a weapon of mass destruction that inflicts large casualties, the Constitution would likely be discarded in favor of a military government.

If that is the case, what of our liberties and freedoms then? How do you think your peaceful protests against any issue, to include immigration, abortion, or gay rights would be handled under a military form of government. Your freedom of speech would be severely curtailed. Yet you have allowed our government to pass this law without even a whimper.

This new law does require that the president notify Congress
"as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority." However, during the signing statement President Bush stated, "The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive." In other words, the President doesn’t even have to explain himself to Congress if he deems it is in the best interest of national security.

President Bush has even told Bob Woodward, "I do not need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel I owe anybody an explanation."

Just about the same time as the President signed the John Warner Defense Act, he also signed the Military Commissions Act. This Act establishes a system of military tribunals to try enemy combatants. Remember now that under the Patriot Act you can be declared an enemy by performing acts of civil disobedience.

Under the Military Commissions Act,
-The use of evidence obtained by torture will be allowed.
-The defense will not have access to all evidence that is deemed 'secret'.
-People brought before a military tribunal will have lost the right of habeas corpus, which means that they cannot petition the court to determine if their is sufficient evidence to warrant their detention.

I have already discussed the principle of habeas corpus, but now according to laws in existence I could be declared an enemy combatant because I disagree with the War in Iraq and am outspoken on my views. Therefore I could be arrested, and held without the right to argue against my detention. I would be tried before a military tribunal, bypassing my 5th amendment rights completely.

Finally, on May 9, 2007 President Bush signed the National Security Presidential Directive/NSPD 51, Homeland Security Presidential Directive/HSPD-20. This gives the President all encompassing powers to run the government. From that document we read, “(6) The President shall lead the activities of the Federal Government for ensuring constitutional government. In order to advise and assist the President in that function, the Assistant to the President for Homeland Security and Counterterrorism (APHS/CT) is hereby designated as the National Continuity Coordinator.”

The President is known as somewhat of a cowboy. However his shoot from the hip style of governing is also a direct affront to the Constitution and the power of the executive.

According to the Boston Globe, the president has claimed the right to ignore more than 750 laws enacted since he became president. He has even overruled Congress’s requirement that he report back to them on how he has implemented a number of laws. What ever happened to checks and balances?

President Bush has cited that he has the authority to flout the will of Congress due to his inherent power, and also the unitary executive. According to Black’s Law Dictionary, inherent powers are described as ‘powers over and beyond those expicitly granted in the Constitution or reasonably to be implied from express grants. In other words powers the president assumes he has that are not clearly defined.

The second, and in my opinion, more dangerous reason the president gives is his unitary executive. The concept of a unitary executive implies that the executive branch can overrule both Congress and the Courts based upon his personal interpretation of the Constitution. This overturns the court ruling of Marbury v. Madison (1803) which established the principle of judicial review and the constitutional concept of checks and balances. This if frightening in that the President now has the power to interpret the Constitution, instead of upholding it as his oath of office states he shall.

John Yoo, a who is known for his work in the U.S. Justice Department’s Office of Legal Counsel once declared that “... the President's ultimate duty to protect and defend the nation gives him the right, if he so wishes, not only to ignore Congress and the courts but also deliberately to deceive them, and the public at large, for the sake of national security.”

There is a report which , “found that these presidential assertions of constitutional authority “undermine the rule of law and our constitutional system of separation of powers.” The entire report can be found at,

In closing I would like to read comments made by two current legislators in regards to much of the legislation that has been passed in the name of the War on Terror. First off, in a letter to Attorney General John Ashcroft, Senator Patrick Leahy made the following comments, "[T]his concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of...power designed to promote such a goal. Implicit in the term 'national defense' is the notion that defending those values and ideas which se this Nation apart...It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties...which makes the defense of the Nation worthwhile."

After reviewing the Patriot Act, Congressman Ron Paul said that our forefathers would think it is time for a revolution.

We have lost so much in terms of personal freedom and liberties. While they may not be apparent to everyone, they are in fact liberties that at one time were something guaranteed us under the Bill of Rights. They are now gone under legislation written to supposedly protect us from evil terrorists. My question to you now is this, “How much more liberty are you willing to give up to feel safe from terrorism? As far as I am concerned, we have given up far too much already. Time will be the judge as to whether these laws have done any good to protect us from another terrorist attack. My bet is they won’t make a bit of a difference, they have made our government more powerful and taken away freedoms that were so cherished by our founders that they were willing to fight and die to retain them.

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