Ninth Circuit OKs Feds Use of Cellphones as Roving Bugs

The Ninth Circuit of Appeals ruled on July 20 that agents of the federal government may use a cellphone as a microphone and record the conversations overheard even when the phone itself is not being used otherwise.

This frightening bit of judicial lawmaking came as part of the decision in the case of the United States v. Oliva, 2012 WL 2948542 (9thCir. July 20, 2012).

For a bit of background, Oliva was convicted by a jury of drug-related crimes involving the distribution of methamphetmaine, cocaine, and marijuana. He appealed a decision by a district court denying his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones associated with him and his alleged co-conspirators.

Oliva argued that the orders authorizing these wiretaps were not standard intercept orders and did not meet the “specificity” requirement of the applicable federal law.

In its decision, the Ninth Circuit has upheld the lower court’s ruling, essentially allowing the federal government to convert cellphones into “roving bugs” so long as the government makes it clear that it will be using the target’s cellphone in that manner. Notice, the Ninth Circuit — a court created under the authority granted to Congress in Article III of the Constitution — did not throw out the matter as a violation of the defendant’s Fourth Amendment right against “unreasonable searches and seizures.” Instead, it simply informed  the government that it needs to get permission before doing so.

Details

Michigan State and Local Govts Propose NDAA Nullifying Bills

Citizens of Michigan continue to press for passage of a state law that would nullify the execution of the National Defense Authorization Act (NDAA) within the boundaries of the Great Lakes State. One such effort was begun by Michigan Representative Tom McMillin on June 14 when he introduced his bill to prevent the arrest and indefinite detention of citizens of his state under the authority of relevant provisions of the NDAA. According to the text of the legislation:

No agency of this state, no political subdivision of this state, no employee of an agency of this state or a political subdivision of this state acting in his or her official capacity, and no member of the Michigan national guard on official state duty shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to 50 USC 1541, as provided by the federal national defense authorization act for fiscal year 2012.

As reported by the Tenth Amendment Center (TAC):

Work to nullify NDAA detention provisions also continues at the local level in the Great Lakes State. On July 18, Oakland County Commissioner Jim Runestad introduced an NDAA Liberty Preservation Resolution for consideration, and on July 26, Allegan County Commissioner Bill Sage will introduce an identical resolution to that county commission.

County Commissioner Sage is quoted in the TAC article saying, “Citizens cannot stand by and permit this type of travesty against the U.S. Constitution that all local, state, and federal officials took an oath to protect.” In an effort to bolster the strength and scope of the grassroots campaign in his state, Sage and other likeminded Michiganders formed a “citizens’ action committee” called WOLF PAC. WOLF stands for “We the people Of Liberty and Freedom.”

According to the group’s website, WOLF PAC is dedicated to supporting “our Great Republic” through lobbying to:

Details

Drone Use Increases Worldwide; Trade Rep Says Only the Guilty Need Fear

“If you’re concerned about it, maybe there’s a reason we should be flying over you, right?” That’s the callous response of one drone trade group representative when asked his opinion of those who worry about the increasing use of the unmanned aerial vehicles and the corresponding decrease in privacy and civil liberties. The man who spoke those words is Douglas McDonald, the director of special operations for Unmanned Applications Institute International and president of a North Dakota chapter of an unmanned vehicle trade group. Another North Dakotan has a different take on the use of drones in the Flickertail State.

It’s been about a year since a North Dakota man was arrested after a local SWAT team tracked him down using a Predator drone it borrowed from the Department of Homeland Security. Although the story has not been widely reported, Rodney Brossart became one of the first (if not the first) American citizens arrested by local law enforcement with the use of a federally-owned drone surveillance vehicle after holding the police at bay for over 16 hours.

Brossart’s run-in with law enforcement began after six cows found their way onto his property (about 3,000 acres near Lakota, North Dakota) and he refused to turn them over to officers. In fact, according to several sources, Brossart and a few family members ran police off his farm at the point of a gun. Naturally, police weren’t pleased with Brossart’s brand of hospitality, so they returned with a warrant, a SWAT team, and a determination to apprehend Brossart and the cows.

A standoff ensued and the Grand Forks police SWAT team made a call to a local Air Force base where they knew a Predator drone was deployed by the DHS. About three years before the Brossart incident, the police department had signed an agreement with DHS for the use of the drone. No sooner did the call come in than the drone was airborne and Brossart’s precise location was pinpointed with laser-guided accuracy. The machine-gun toting SWAT officer rushed in, tased then arrested Brossart on various charges including terrorizing a sheriff, and the rest is history. Literally.

Details

VA Lawmaker to Introduce Domestic Drone Regulation Bill

What could bring together the American Civil Liberties Union (ACLU) and one of Virginia’s most conservative state representatives? The specter of drones filling the skies of the United States. In a joint statement released July 17 by Virginia Delegate Todd Gilbert (R-Shenandoah) and the Virginia Chapter of the ACLU, the seemingly disparate pair announced plans to work to fight the unregulated use of drones by law enforcement in the Old Dominion. He stated,

Both the ACLU and I believe, as do many Virginians across the political spectrum, that the use of drones by police and other government agencies should be strictly controlled by state laws that protect the privacy and civil rights of all Virginia residents. I will be introducing legislation in the 2013 General Assembly Session to i) prohibit the use of drones by law enforcement unless a warrant has been issued; ii) require that policies and procedures for the use of drones be adopted by legislative bodies in open meetings; iii) provide for public monitoring and accountability; and iv) mandate that pictures of individuals acquired by drones be destroyed unless they are part of an authorized investigation.

Claire Guthrie Gastañaga, executive director of the Virginia ACLU, echoed Delegate Gilbert’s remarks:

Delegate Gilbert is right to be concerned about the possibility that, without new laws, this new and increasingly inexpensive technology will be used in a manner that will violate the fundamental right to be free from unreasonable searches and will have a chilling effect on the First Amendment rights of Virginians to assemble peaceably and speak freely. We are proud to be working with Delegate Gilbert to build a coalition in favor of the legislation he will introduce — a coalition that will bring together diverse voices from across the Commonwealth.

Despite their cooperation on this issue, Gilbert and the Virginia ACLU have been foes in previous matters. For example, Delegate Gilbert recently sponsored a bill that would permit state-assisted private adoption agencies to reject prospective parents if the agency objected to the couple’s religion or sexual orientation. Gilbert described the measure as a “conscience clause,” while the ACLU countered that it was state-sponsored anti-homosexual discrimination. The bill is now the law in Virginia.

Details

Poll: 24% of Americans Believe in Right of Secession; but Is It Necessary?

Twenty-four percent (24%) of American adults believe states have the right to secede from the union and form an independent country, according to a recent survey conducted by polling professionals Rasmussen Reports.

In its telephone survey of 1,000 American adults conducted May 29-30, Rasmussen pollsters asked respondents the following question: “Do individual states have the right to leave the United States and form an independent country?”

The percentage of those answering yes to that question has increased by 10 percent in the two years since the same question wasasked in a previous poll.

In a statement released concurrent with the publication of the poll results, Scott Rasmussen (founder and president of Rasmussen Reports) said that the surprising responses indicated that Americans have “serious and growing concern about the federal government.”

That such a sentiment has grown so popular is to be expected given the decline in economic prosperity and the increase of the authoritarian surveillance state. Americans daily witness the usurpation of power by a never-surfeited federal government. State sovereignty is spoken of only in context of a now extinct notion of federalism, a relic from our republican past.

In a statement made to CNSNews.com, Rasmussen also alluded to the burgeoning frustration with the federal government as a reason for the results.

“We do see that people are concerned about the federal government in a variety of ways. Fifty-one percent believe that it’s a threat to individual liberties.”

“It may just be part of a growing frustration with other aspects of the federal government,” he continued. “But I think it’s important to keep it in perspective, growing to 24 percent still means that only one out of four Americans think that states have the right to secede, it’s not that they’re advocating for it,” he clarified.

Details

Obama Threatens Veto of NDAA 2013: Too Many Restrictions on His “Exclusive” Authority

Last week, several major news outlets reported on a Statement of Administration Policy (SAP) released by the White House regarding the Fiscal Year 2013 version of the National Defense Authorization Act (NDAA).

In the SAP, President Obama lays out 32 reasons why he is likely to veto the newest iteration of the NDAA.

The headlines announcing the President’s promise to reject the NDAA are identical to those published early last December, just a couple of weeks before the President took time off from his Hawaiian vacation to sign the measure into law. Somehow, President Obama was able to set aside his issues with the act and grant himself the power to indefinitely detain Americans without charge or trial.

Recently, we reported how those very provisions — those purporting to give the President the expansive and unconstitutional powers described above — remain in this year’s NDAA, despite the best efforts of a handful of constitutionally-minded representatives.

Last month, by a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the Fiscal Year 2012 NDAA.

Not only does the 2013 NDAA retain the indefinite detention provisions, but the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military persists, as well.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate on his amendment.

In his impassioned speech supporting his proposal, Representative Smith reminded his colleagues that the NDAA granted to the President “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

Details

Supreme Court to “Decide” Whether NSA Domestic Wiretapping Is Beyond the Law

Last Monday, the Supreme Court of the United States granted a petition to hear a lawsuit calling for an end to another case challenging the constitutionality of the government’s warrantless wiretapping program.

This Orwellian (and unconstitutional) surveillance scheme was established in the wake of the attacks of September 11, 2001 and was explicitly authorized by an act of Congress passed in 2008.

Naturally, the Obama administration is pleased by the high court’s announcement, as it has followed the tack laid down by the George W. Bush White House that holds that the federal government’s monitoring and recording of the private communications of American citizens is not subject to legal scrutiny.

At issue in the case is the interpretation of the Federal Information Securities Act (FISA) Amendments Act, which has been challenged by the American Civil Liberties Union (ACLU) and other civil rights watchdog groups. The FISA Amendments Act purports to permit the intelligence and security agencies of the United States government to eavesdrop on the electronic communications routinely carried on among citizens of this Republic and those residing overseas.

It’s not the eavesdropping that’s the most egregious violation of the Constitution and the Bill of Rights (such activities are conducted by law enforcement all the time for legitimate purposes), but it’s the indefensible fact that the federally empowered snoops conduct this surveillance without a probable cause warrant so long as one of the parties being monitored is located outside the territory of the United States. The justification being that if an American is talking, texting, or e-mailing a foreigner then something might be said that would aid in the acquisition of “foreign intelligence information.”

This policy is such a shameful disregard for our long history of individual-based human and civil rights (including the freedom from unwarranted searches and seizures) that it shocks the conscience even when the source is considered.

Details

After NDAA Amendment, Indefinite Detention Still the Law

Originally published at The New American

In a shameful display of disregard for the Constitution and for liberty, on Friday, the House of Representatives voted to perpetuate the president’s power to indefinitely detain American citizens.

By a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Washington) and Justin Amash (R-Michigan) (left and right, respectively in photo montage at left) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the National Defense Authorization Act (NDAA) of 2012.

The Fiscal Year 2013 NDAA retains the indefinite detention provisions, as well as the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate.

Debate on the Smith-Amash Amendment, as well as about 140 others began in the early, pre-dawn hours Friday morning.

In his impassioned speech supporting his amendment, Representative Smith reminded his colleagues that the NDAA granted to the president “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

Smith pointed out that there was no need to transfer suspects into military custody as “hundreds” of terrorists have been tried in federal courts since the attacks of September 11, 2001.

Congressmen — Republicans and Democrats — were not persuaded and they voted against Smith-Amash.

Another amendment offered by Representatives Louie Gohmert (R-Texas), Jeff Landry (R-Louisiana), and Scott Rigell (R-Virginia) passed by a vote of 243-173. The Gohmert Amendment (House Amendment 1126) states that the NDAA will not “deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”

Again, this amendment is yet another indefensible use of vague language that would make it vulnerable to challenge in any court in any state in the Union, but somehow adds to its appeal among the Republicans in Congress.

Smith and those supporting his amendment claimed that Gohmert’s Amendment was unnecessary as it does nothing of any value other than restate what is already settled law: viz., that Americans have the right to a ask for a writ of habeas corpus.

Details

NDAA 2013 Passes out of Committee; Indefinite Detention Provisions Remain Intact

As opposition to the National Defense Authorization Act of 2012 continues to grow, along comes the 2013 version, which promises to perpetuate the attack on liberty begun by its predecessor.

In the pre-dawn hours on Thursday, by a vote of 56-5, the House Armed Services Committee passed a slate of changes to the NDAA for the next fiscal year. Committee Chairman Howard P. “Buck” McKeon (R-Calif.) released a statement announcing the goals of the bill’s latest mark-up:

I am proud of the bi-partisan way the Committee has worked together to build this bill. It rebuilds a force strained by ten years of war while restoring both fiscal and strategic sanity to the defense budget. It keeps faith with our troops and their families while keeping America ready to face the threats of the future.

In his statement, Representative McKeon declares that “every American must have his day in court.” Further, he “reaffirms the fundamental right to Habeas Corpus of any person detained in the United States pursuant to the 2001 Authorization for the Use of Military Force.”

Section 1033 of the mark-up version passed by the committee is offered as the codification of that protection. Here is the current text of that updated provision:

This section would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40).

The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.

Details

Oklahoma Legislator Introduces NDAA Nullifying Resolution

Another brave state legislator has joined the resistance to federal tyranny by defending the constitutional right of states to govern themselves.
 On February 3,  Oklahoma Rep. Charles Key (R-Oklahoma City, left) offered a bill that would officially request that the Congress of the United States repeal Sections 1021 and 1022 of the National Defense Authorization Act (NDAA). Furthermore, the legal effect of those two sections would be void in Oklahoma.

In a press release accompanying the introduction of the bill, Rep. Key explained his motivation for putting forth the proposal:

President Barack Obama has said he would not hold citizens indefinitely; it is deplorable that he would sign into law legislation that contains clauses that would authorize him to do just that. Oklahomans have taken notice of this repugnant new law and as state lawmakers it is our duty to apply pressure to Congress and the president to undo this debacle.

This commendable attitude echoes that of another state lawmaker, Brian Nieves of Missouri, whoexplained to The New American his reason for sponsoring similar legislation in the Show Me State:

It is time for the members of the State Legislatures of this great Republic to stand up and assert the proper relationship between the several states and the federal government. For far too long I’ve heard state legislators say, “We can’t do that — the feds won’t let us,” when instead, it should be members of our U.S. Congress saying, “We can’t do that — the states won’t let us!”

The preamble to the 15-page concurrent resolution lays out an appropriate affront and a laudable tone for the Sooner lawmaker’s determination to nullify illegal federal encroachment into the sovereign territory of the states. The proposal declares that

the National Defense Authorization Act for Fiscal Year 2012 is unconstitutional; directing Oklahoma Congressional Delegation to commence efforts to repeal certain sections of the act; expressing belief that the unconstitutional sections of the act are not enforceable within the state and prohibiting state officers from enforcing them; and directing distribution.

From there, the text of the bill lays out a well-reasoned response to the power afforded to the President by the NDAA to deploy the U.S. military to apprehend and indefinitely detain American citizens on mere suspicion of posing a threat to the security of the homeland.

For example, Rep. Key’s resolution plainly and without reservation appeals to the Preamble to the U.S. Constitution, the Bill of Rights, and the Constitution of the State of Oklahoma for support of his defense of state sovereignty:

Details