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This article is useful, especially for me, as a non-American, to better understand the US constitution
Scorecard: How Many Rights Have Americans REALLY Lost?
Fourth Amendment
Scorecard: How Many Rights Have Americans REALLY Lost?
by George Washington
21
February, 2013
Preface:
While a lot of people talk about the loss of our Constitutional
liberties, people usually speak in a vague, generalized manner … or
focus on only one issue and ignore the rest.
This
post explains the liberties guaranteed in the Bill of Rights – the
first 10 amendments to the United States Constitution – and
provides a scorecard on the extent of the loss of each right.
First
Amendment
The
1st Amendment protects speech, religion, assembly and the press:
Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
However,
the government is arresting
those speaking out
… and violently
crushing peaceful assemblies which attempt to petition the government
for redress.
A
federal judge found that the law allowing indefinite detention of
Americans without due process has a “chilling
effect” on free speech.
And see this
and this.
The
threat
of being labeled a terrorist for exercising our First Amendment
rights
certainly violates the First Amendment. The government is
using
laws to crush dissent,
and it’s gotten so bad that even U.S.
Supreme Court justices are saying that
we are descending into tyranny.
For
example, the following actions may get an American citizen living on
U.S. soil labeled as a “suspected terrorist” today:
Criticizing
the government’s targeting of innocent civilians with drones
(although killing innocent civilians with drones is one of the main
things which increases
terrorism.
And see this)
Stocking
up on more than 7 days of food
(even though all Mormons
are taught to stockpile food,
and most Hawaiians
store up on extra food)
And
holding the following beliefs may also be considered grounds for
suspected terrorism:
And
1st Amendment rights are especially chilled when power has become so
concentrated that the
same agency
which spies on all Americans also decides who should be assassinated.
Second
Amendment
The
2nd Amendment states:
A
well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.
Gun
control and gun rights advocates obviously have very different views
about whether guns are a force for violence or for good.
But
even a top liberal Constitutional law expert reluctantly admits
that the right to own a gun is as
important a Constitutional right as freedom of speech or religion:
Like
many academics, I was happy to blissfully ignore the Second
Amendment. It did not fit neatly into my socially liberal agenda.
***
It
is hard to read the Second Amendment and not honestly conclude that
the Framers intended gun ownership to be an individual right. It is
true that the amendment begins with a reference to militias: “A
well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be
infringed.” Accordingly, it is argued, this amendment protects the
right of the militia to bear arms, not the individual.
Yet,
if true, the Second Amendment would be effectively declared a defunct
provision. The National Guard is not a true militia in the sense of
the Second Amendment and, since the District and others believe
governments can ban guns entirely, the Second Amendment would be read
out of existence.
***
More
important, the
mere reference to a purpose of the Second Amendment does not alter
the fact that an individual right is created. The right of the people
to keep and bear arms is stated in the same way as the right to free
speech or free press.
The statement of a purpose was intended to reaffirm the power of the
states and the people against the central government. At the time,
many feared the federal government and its national army. Gun
ownership was viewed as a deterrent against abuse by the government,
which would be less likely to mess with a well-armed populace.
Considering
the Framers and their own traditions of hunting and self-defense, it
is clear that they would have viewed such ownership as an individual
right — consistent with the plain meaning of the amendment.
None
of this is easy for someone raised to believe that the Second
Amendment was the dividing line between the enlightenment and the
dark ages of American culture. Yet, it is time to honestly reconsider
this amendment and admit that … here’s the really hard part …
the NRA
may have been right.
This does not mean that Charlton Heston is the new Rosa Parks or that
no restrictions can be placed on gun ownership. But it does appear
that gun
ownership was made a protected right by the Framers and, while we
might not celebrate it, it is time that we recognize it.
The
gun control debate – including which weapons and magazines are
banned – is still in flux …
Third
Amendment
The
3rd Amendment prohibits the government forcing people to house
soldiers:
No
Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.
Hey
… we’re still honoring one of the Amendments! Score one for We
the People!
Fourth Amendment
The
4th Amendment prevents unlawful search and seizure:
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.
The
domestic use of drones to spy on Americans clearly violates the
Fourth Amendment and limits our rights to personal privacy.
Paul
introduced
a bill
to “protect individual privacy against unwarranted governmental
intrusion through the use of unmanned aerial vehicles commonly called
drones.”
Emptywheel
notes
in a post entitled “The OTHER Assault on the Fourth Amendment in
the NDAA? Drones at Your Airport?”:
***
As
the map above makes clear–taken from this
2010 report–DOD
[the Department of Defense] plans to have drones all over the country
by 2015.
At
least 13 state and local police agencies around the country have used
drones in the field or in training, according to the Association for
Unmanned Vehicle Systems International, an industry trade group. The
Federal Aviation Administration has predicted that by the end of the
decade, 30,000 commercial and government drones could be flying over
U.S. skies.
***
“Drones
should only be used if subject to a powerful framework that regulates
their use in order to avoid abuse and invasions of privacy,” Chris
Calabrese, a legislative counsel for the American Civil Liberties
Union, said during a congressional forum in Texas last month.
He
argued police should only fly drones over private property if they
have a warrant, information collected with drones should be promptly
destroyed when it’s no longer needed and domestic drones should not
carry any weapons.
He
argued that drones pose a more serious threat to privacy than
helicopters because they are cheaper to use and can hover in the sky
for longer periods of time.
A
congressional report earlier this year predicted that drones could
soon be equipped with technologies to identify faces or track people
based on their height, age, gender and skin color.
The
American government is collecting and storing virtually every phone
call, purchases, email, text message, internet searches,
social
media communications,
health
information, employment history, travel and student records,
and virtually all other information of every American.
Some
also claim that the government is also using facial recognition
software and surveillance cameras to track
where everyone is going.
Moreover, cell towers track
where your phone is
at any moment, and the major cell carriers, including Verizon and
AT&T, responded to at
least 1.3 million law enforcement requests
for cell phone locations and other data in 2011. (And – given that
your smartphone
routinely
sends your location information
back to Apple or Google – it would be child’s play for the
government to track your location that way.) Your
iPhone,
or other
brand of smartphone
is spying on virtually
everything you do
(ProPublica notes: “That’s
No Phone. That’s My Tracker“).
As
the top spy chief at the U.S. National Security Agency explained
this week, the American government is collecting some 100 billion
1,000-character emails per day, and 20 trillion communications of all
types per year.
He
says that the government has collected all of the communications of
congressional leaders, generals and everyone else in the U.S. for the
last 10 years.
He
further explains that he set up the NSA’s system so that all of the
information would automatically be encrypted, so that the government
had to obtain a search warrant based upon probably cause before a
particular suspect’s communications could be decrypted. [He
specifically did this to comply with the Fourth Amendment's
prohibition against unreasonable search and seizure.] But the NSA now
collects all data in an unencrypted form, so that no probable cause
is needed to view any citizen’s information. He says that it
is actually cheaper and easier to store the data in an encrypted
format: so the government’s current system is being done for
political – not practical – purposes.
He
says that if anyone gets on the government’s “enemies list”,
then the stored information will be used to target them.
Specifically, he notes that if the government decides it doesn’t
like someone, it analyzes all of the data it has collected on that
person and his or her associates over the last 10 years to build a
case against him.
Wired
reports:
Transit
authorities in cities across the country are quietly installing
microphone-enabled surveillance systems on public buses that would
give them the ability to record and store private conversations….
The
systems are being installed in San Francisco, Baltimore, and other
cities with funding from the Department of Homeland Security in some
cases ….
The
IP audio-video systems can be (.pdf), and can be combined with GPS
data to track the movement of buses and passengers throughout the
city.
***
The
systems use cables or WiFi to pair
audio conversations with camera images in order to produce
synchronous recordings. Audio and video can be monitored in
real-time,
but are also stored onboard in blackbox-like devices, generally for
30 days, for later retrieval. Four to six cameras with mics are
generally installed throughout a bus, including one near the driver
and one on the exterior of the bus.
***
Privacy
and security expert Ashkan Soltani told the Daily that the audio
could easily be coupled with facial recognition systems or audio
recognition technology to identify passengers caught on the
recordings.
Street
lights that can spy installed in some American cities
America
welcomes a new brand of smart street lightning systems:
energy-efficient, long-lasting, complete with LED screens to show
ads. They can also spy on citizens in a way George Orwell would not
have imagined in his worst nightmare.
With
a price tag of $3,000+ apiece, according to an ABC report, the street
lights are now being rolled out in Detroit, Chicago and Pittsburgh,
and may soon mushroom all across the country.
Part
of the Intellistreets systems made by the company Illuminating
Concepts, they have a number
of “homeland security applications” attached.
Each
has a microprocessor “essentially similar to an iPhone,” capable
of wireless
communication. Each can capture images and count people for the
police through a digital camera, record conversations of passers-by
and even give voice commands thanks to a built-in speaker.
Ron
Harwood, president and founder of Illuminating Concepts, says he eyed
the creation of such a system after the 9/11 terrorist attacks and
the Hurricane Katrina disaster. He is “working
with Homeland Security” to deliver his dream of making people “more
informed and safer.”
Fox
news notes that the government is insisting
that “black boxes” be installed in cars
to track your location.
The
TSA has moved way past airports, trains and sports stadiums, and is
deploying
mobile scanners
to spy on people all over the place. This means that traveling
within the United States is no
longer a private affair.
(And they’re probably bluffing, but the Department of Homeland
Security claims they will soon be able to know your adrenaline level,
what you ate for breakfast and what you’re thinking … from
164 feet away.)
And
Verizon has applied for a patent that would allow your television to
track
what you are doing, who you are with, what objects you’re holding,
and what type of mood you’re in.
Given Verizon and other major carriers responded to at
least 1.3 million law enforcement requests
for cell phone locations and other data in 2011, such information
would not be kept private. (And some folks could be spying on
you through your tv using existing
technology.)
Of
course, widespread spying on Americans began before
9/11
(confirmed here
and here.
And see this).
So the whole “post-9/11 reality” argument falls flat.
And
the spying isn’t
being done to keep us safe … but to crush dissent
and to smear
people
who uncover unflattering this about the government … and to help
the too big to fail businesses compete against smaller businesses
(and here).
In
addition, the ACLU published
a map in 2006 showing that nearly two-thirds of the American public –
197.4 million people – live within a “constitution-free zone”
within 100 miles of land and coastal borders:
Normally
under the Fourth Amendment of the U.S. Constitution, the American
people are not generally subject to random and arbitrary stops and
searches.
The
border, however, has always been an exception. There, the
longstanding view is that the normal rules do not apply. For
example the authorities do not need a warrant or probable cause to
conduct a “routine search.”
But
what is “the border”? According to the government, it
is a 100-mile wide strip that wraps around the “external boundary”
of the United States.
As
a result of this claimed authority, individuals who are far away from
the border, American citizens traveling from one place in America to
another, are being stopped and harassed in ways that our Constitution
does not permit.
Border
Patrol has been setting up checkpoints inland — on highways in
states such as California, Texas and Arizona, and at ferry terminals
in Washington State. Typically, the agents ask drivers and passengers
about their citizenship. Unfortunately, our courts so far have
permitted these kinds of checkpoints – legally speaking, they are
“administrative” stops that are permitted only for the specific
purpose of protecting the nation’s borders. They cannot
become general drug-search or other law enforcement efforts.
However,
these stops by Border Patrol agents are not remaining confined to
that border security purpose. On the roads of California and
elsewhere in the nation – places far removed from the actual border
– agents are stopping, interrogating, and searching Americans on an
everyday basis with absolutely no suspicion of wrongdoing.
The
bottom line is that the extraordinary authorities that the government
possesses at the border are spilling into regular American streets.
Border
agents don’t need probable cause and they don’t need a stinking
warrant since they don’t need to prove any reasonable suspicion
first. Nor, sadly, do two out of three people have First Amendment
protection; it is as if DHS has voided those Constitutional
amendments and protections they provide to nearly 200 million
Americans.
***
Don’t
be silly by thinking this means only if you are physically trying to
cross the international border. As we saw when discussing the DEA
using license plate readers and data-mining to track
Americans movements,
the U.S. “border” stretches out 100 miles beyond the true border.
Godfather Politics added:
But
wait, it gets even better! If you live anywhere in Connecticut,
Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New
Hampshire, New Jersey or Rhode Island, DHS says the search zones
encompass the entire state.
Immigrations
and Customs Enforcement (ICE) and Customs and Border Protection (CBP)
have a “longstanding constitutional and statutory authority
permitting suspicionless and warrantless searches of merchandise
at the border and its functional equivalent.” This applies to
electronic devices, according to the recent CLCR “Border Searches
of Electronic Devices” executive summary [PDF]:
Fourth
Amendment
The
overall authority to conduct border searches without suspicion or
warrant is clear and longstanding, and courts have not treated
searches of electronic devices any differently than searches of other
objects. We conclude that CBP’s and ICE’s current border
search policies comply with the Fourth Amendment. We also
conclude that imposing a requirement that officers have reasonable
suspicion in order to conduct a border search of an electronic device
would be operationally harmful without concomitant civil rights/civil
liberties benefits. However, we do think that recording more
information about why searches are performed would help managers and
leadership supervise the use of border search authority, and this is
what we recommended; CBP has agreed and has implemented this change
beginning in FY2012.
First
Amendment
Some
critics argue that a heightened level of suspicion should be required
before officers search laptop computers in order to avoid chilling
First Amendment rights. However, we conclude that the laptop
border searches allowed under the ICE and CBP Directives do not
violate travelers’ First Amendment rights.
The
ACLU said, Wait one darn minute! Hello, what happened to the
Constitution? Where is the rest of CLCR report on the “policy of
combing through and sometimes confiscating travelers’ laptops, cell
phones, and other electronic devices—even when there is no
suspicion of wrongdoing?” DHS maintains it is not violating our
constitutional rights, so the ACLU
said:
If
it’s true that our rights are safe and that DHS is doing all the
things it needs to do to safeguard them, then why won’t it show us
the results of its assessment? And why would it be legitimate to keep
a report about the impact of a policy on the public’s rights hidden
from the very public being affected?
***
As
ChristianPost
wrote,
“Your constitutional rights have been repealed in ten states. No,
this isn’t a joke. It is not exaggeration or hyperbole. If you are
in ten states in the United States, your some of your rights
guaranteed by the Bill of Rights have been made null and void.”
The
ACLU
filed
a Freedom of Information Act request for the entire DHS report about
suspicionless and warrantless “border” searches of electronic
devices. ACLU attorney Catherine Crump said “We hope to establish
that the Department of Homeland Security can’t simply assert that
its practices are legitimate without showing us the evidence, and to
make it clear that the government’s own analyses of how our
fundamental rights apply to new technologies should be openly
accessible to the public for review and debate.”
Meanwhile,
the EFF has tips
to protect yourself and your devices against border searches. If you
think you know all about it, then you might try testing your
knowledge with a defending
privacy at the U.S. border quiz.
Federal
agents at the border do not need any reason to search through
travelers’ laptops, cell phones or digital cameras for
evidence of crimes, a federal appeals court ruled Monday, extending
the government’s power to look through belongings like suitcases at
the border to electronics.
***
The
9th U.S. Circuit Court of Appeals sided with the
government, finding that the so-called border exception to the
Fourth Amendment’s prohibition on unreasonable searches applied not
just to suitcases and papers, but also to electronics.
***
Travelers
should be aware that anything on their mobile devices can be searched
by government agents, who may also seize the devices and keep them
for weeks or months. When in doubt, think about whether online
storage or encryption might be tools you should use to prevent the
feds from rummaging through your journal, your company’s
confidential business plans or naked pictures of you and
your-of-age partner in adult fun.
Fifth
Amendment
The
5th Amendment addresses due process of law, eminent domain, double
jeopardy and grand jury:
No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
But
the American government has shredded the 5th Amendment by subjecting
us to indefinite detention
and taking
away our due process rights.
The
government claims the right to assassinate
or indefinitely detain any American citizen on U.S. citizen without
any due process.
And see
this.
As
such, the government is certainly depriving people of life, liberty,
or property, without due process of law.
There
are additional corruptions of 5th Amendment rights – such as
property being taken for private
purposes.
The
percentage of prosecutions in which a defendant is denied a
grand jury is difficult to gauge, as there is so
much secrecy
surrounding many terrorism
trials.
Protection
against being tried twice for the same crime after being found
innocent (“double jeopardy”) seems to be intact.
Image
by William
Banzai
Sixth
Amendment
The
6th Amendment guarantees the right to hear the criminal charges
levied against us and to be able to confront the witnesses who have
testified against us, as well as speedy criminal trials, and a public
defender for those who cannot hire an attorney:
In
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence
Subjecting
people to indefinite
detention
or assassination
obviously
violates the 6th Amendment right to a jury trial. In both
cases, the defendants is “disposed of” without ever receiving a
trial … and often without ever hearing the charges against them.
More
and more commonly, the government prosecutes cases based
upon “secret evidence”
that they don’t show to the defendant … or sometimes even the
judge hearing the case.
The
government uses “secret evidence” to spy
on Americans,
prosecute leaking
or terrorism
charges (even against U.S.
soldiers)
and even assassinate
people.
And see this
and this.
Secret
witnesses
are being used in some cases. And sometimes lawyers are not
even allowed to read their own briefs.
Indeed,
even the laws
themselves are now starting to be kept secret.
And it’s about to get
a lot worse.
True
– when defendants are afforded a jury trial – they are provided
with assistance of counsel. However, the austerity
caused by redistribution of wealth to the super-elite
is causing severe budget cuts to the courts and the public defenders’
offices nationwide.
Moreover,
there are two
systems of justice in America
… one for the big banks and other fatcats, and one
for everyone else.
The government made it official
policy not to prosecute fraud,
even though fraud is the main
business model
adopted by Wall Street. Indeed, the biggest
financial crime in world history,
the largest
insider trading scandal of all time,
illegal raiding
of customer accounts
and blatant
financing of drug cartels and terrorists
have all been committed recently without any real criminal
prosecution or jail time.
On
the other hand, government prosecutors are using the legal system to
crush dissent
and to silence
whistleblowers.
And
some of the nation’s most powerful judges have lost their
independence … and are in
bed with the powers-that-be.
Seventh
Amendment
The
7th Amendment guarantees trial by jury in federal court for civil
cases:
In
Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the common law.
As
far as we know, this right is still being respected. However –
as noted above – the austerity
caused by redistribution of wealth to the super-elite
is causing severe budget cuts to the courts, resulting in the wheels
of justice slowing down considerably.
Painting
by Anthony Freda: www.AnthonyFreda.com
Eighth
Amendment
The
8th Amendment prohibits cruel and unusual punishment:
Excessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
The
widespread system of torture carried out in the last 10 years –
with the help
of other countries
– violates
the 8th Amendment.
Many want to bring
it back
… or at least justify
its past use.
While
Justice Scalia disingenuously
argues
that torture does not constitute cruel and unusual punishment because
it is meant to produce information – not punish – he’s
wrong.
It’s not only cruel and unusual … it is technically a form
of terrorism.
And
government
whistleblowers are being cruelly and unusually punished
with unduly harsh sentences meant to intimidate anyone else from
speaking out.
Ninth
Amendment
The
9th Amendment provides that people have other rights, even if they
aren’t specifically listed in the Constitution:
The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
The
government has trampled our basic rights as human beings. While
we can debate about what our inherent rights as human beings are, the
government should not actively encourage fraud and manipulation. In
reality – through the malignant,
symbiotic relationship between big government and big corporations,
the government is interfering with our aspirations for economic
freedom,
safe
food and water
(instead of arsenic-laden,
genetically engineered junk),
to be free of undue health hazards such as irradiation
due to government
support
of archaic nuclear power designs, and our yearning for a level
playing field … as opposed to our crony capitalist system in which
the little
guy has no shot
due to redistribution
of wealth
from the middle class to the super-elite, and government support of
white
collar
criminals.
Tenth
Amendment
The
10th Amendment provides that powers not specifically given to the
Federal government are reserved to the states or individual:
The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
Two
of the central principles of America’s Founding Fathers are:
(1)
The government is created and empowered with the consent of the
people
and
(2)
Separation of powers
Today,
most
Americans believe
that the government is threatening – rather than protect –
freedom, and that it is no longer acting with the “consent of the
governed”.
And
the federal government is trampling the separation of powers by
stepping on the toes of the states and the people. For example,
former head S&L prosecutor Bill Black – now a professor of law
and economics – notes:
The
Federal Reserve Bank of New York and the resident examiners and
regional staff of the Office of the Comptroller of the Currency
[both] competed to weaken federal regulation and aggressively
used the preemption doctrine to try to prevent state investigations
of and actions against fraudulent mortgage lenders.
Indeed,
the federal government is doing everything it can be stick its nose
into every aspect of our lives … and act
like Big Brother.
Conclusion:
While a few of the liberties enshrined in the Bill of Rights still
exist, the overall scorecard of the government’s respect for our
basic freedom is a failing
grade.
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