by Ron Paul

Little by little, in the name of fighting terrorism, our Bill of Rights is being repealed.  The 4th amendment has been rendered toothless by the PATRIOT Act.  No more can we truly feel secure in our persons, houses, papers, and effects when now there is an exception that fits nearly any excuse for our government to search and seize our property.  Of course, the vast majority of Americans may say “I’m not a terrorist, so I have no reason to worry.” However, innocent people are wrongly accused all the time.  The Bill of Rights is there precisely because the founders wanted to set a very high bar for the government to overcome in order to deprive an individual of life or liberty.  To lower that bar is to endanger everyone.  When the bar is low enough to include political enemies, our descent into totalitarianism is virtually assured.

The PATRIOT Act, as bad is its violation of the 4th Amendment, was just one step down the slippery slope. The recently passed National Defense Authorization Act (NDAA) continues that slip toward tyranny and in fact accelerates it significantly. The main section of concern, Section 1021 of the NDAA Conference Report, does to the 5th Amendment what the PATRIOT Act does to the 4th.  The 5th Amendment is about much more than the right to remain silent in the face of government questioning.  It contains very basic and very critical stipulations about due process of law. The government cannot imprison a person for no reason and with no evidence presented or access to legal counsel.

The dangers in the NDAA are its alarmingly vague, undefined criteria for who can be indefinitely detained by the US government without trial.  It is now no longer limited to members of al Qaeda or the Taliban, but anyone accused of “substantially supporting” such groups or “associated forces.”  How closely associated?  And what constitutes “substantial” support?   What if it was discovered that someone who committed a terrorist act was once involved with a charity?  Or supported a political candidate? Are all donors of that charity or supporters of that candidate now suspect, and subject to indefinite detainment?  Is that charity now an associated force?

Additionally, this legislation codifies in law for the first time authority to detain Americans that has to this point only been claimed by President Obama. According to subsection (e) of section 1021, “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” This means the president’s widely expanded view of his own authority to detain Americans indefinitely even on American soil is for the first time in this legislation codified in law.  That should chill all of us to our cores.

The Bill of Rights has no exemptions for “really bad people” or terrorists or even non-citizens.  It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the bill of rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror.  This is a very dangerous development indeed. Beware.

 

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Sierra Vista Az, 2009 -A new study by the RAND – Arroyo Center looks at the need for a Special Police Force to be funded by the American people for either foreign or domestic policing in the event of large-scale critical situations. Interestingly, it seems that they may be looking at this initially as a way to supplement their military forces overseas and to provide long-term security options outside of normal military operations. In many cases as can be seen in some of our last “interventions,” there remains an aspect that is severely lacking. The U.S. Military is unfortunately not set up to handle long term policing, as it is an organization primarily focused on military action, which will not work in a civilian atmosphere.

According to the RAND study, “The absence of security makes it difficult to rebuild political, economic, and other sectors. It also makes it difficult to repair and construct basic infrastructure such as water, oil, transportation, or electricity systems, as the U.S. experience in Iraq makes clear.” As can be seen in Iraq military force is not trained to deal with the civilian population in the same manner as a civilian police force may be. After all most military forces are not trained to provide security rather they function by overcoming other force with superior force. A large part of this report directly address’s the question regarding inclusion of additional foreign agencies and militaries in the formation and training of this force in the United States.

According to the RAND study, “The SPF could be used for missions such as: shaping an environment before a conflict; law enforcement duties in an active conflict environment; or security, stability, transition and reconstruction (SSTR) operations after a conflict.” The study has concluded that the logical organization to house this new potential policing organization would be the U.S. Marshals service. The reason for this is the U.S. Marshals Service current role in high end policing here in the United States, of course the question should be raised is this an organization that is Constitutional, and will it be used within our own borders.

Given that some of the duties would be intelligence gathering on potential “terrorist” or other threats which could include organized crime as well, one should assume that due to the recent publication of descriptions of what is a Domestic Terrorist by the Department of Homeland Security, would affect the decisions made by this organization. According to recommendations, it is primarily meant for foreign interests where the need for a true police force exists. It is this authors understanding however; that most of the rest of the world does not utilize our Constitution hence utilizing a U.S. Hybrid Police Force would in fact be forcing this decision on other portions of the world where the various social differences may cause problems beyond what we see now. It should also be noted however, that the authors of this study were clear in that they agree and understand that a foreign nation must be able to establish their own law enforcement over time as well. According to the RAND study, “a major U.S. or international role could undermine a population’s confidence in their government, since it suggests that the government is too weak or incompetent to provide for the country’s security.”

The author is not necessarily against the use of better planning in military operations or in potential crisis locations however, is it necessary to use military in a domestic police force and would this not counter the Posse Comitatus Act of 1878? This act prohibits the use of military personnel inside the United States in the role of civilian law enforcement authorities. It is this authors understanding that by having the U.S. Marshals service heading this organization whether it be used domestically or not would remain irrelevant; after all the simple reality is that by using military personnel to supplement a United States civilian law enforcement agency we are in fact countering the Posse Comitatus Act.

It is this author’s opinion that either we use civilian contracted police forces specifically trained for each theater of operation or we train military police in civilian methodology to shape a more beneficial outcome. Obviously, this would and could still become and issue should insurrection or other potential national security “problems” occur however, it does allow for a Constitutional approach to a modern problem. While this report does not specifically mention the use of such a force within our nation’s boundaries, the idea is inherent given the reasoning behind it. Just as our Congressmen and Senators promised that the Patriot Act would not be used within this nation (and it has been several times against non-terrorist citizens.) we should take into account what recourse we would have if it was decided to use a force such as this within our borders. For this author a force like this is reminiscent of the Nazi Special police and the Communist Russia Special police units who were in effect shock troops specially designed to react regardless of potential innocence or guilt.

Therefore, do we allow this to occur, or is it something we really need?

Reference:

Kelly, Jones, Barnett II, Crane, Davis, Jensen, T, S, J, K, R, C. “A Stability Police Force for the United States Justification and Options for Creating U.S. CapabilitiesRAND Arroyo Center ISBN 978-0-8330-4653-6. (2009).

Originally posted at Examiner.com © Jesse Mathewson

 

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… Definitions, purposes, and the Fourth Amendment

The following paper is meant to define the Exclusionary Rule, present the purpose for its existence, and show the direct relation of it to the Fourth Amendment. We will be looking at benefits and detriments to the idea of abolishing this rule as well. It is the authors hope that this paper will further enlighten those reading it regarding their individual rights and the absolute importance of maintaining those rights.

The Exclusionary Rule can be defined as, “The principle based on federal CONSTITUTIONAL LAW that evidence illegally seized by law enforcement officers in violation of a suspect’s right to be free from unreasonable SEARCHES AND SEIZURES cannot be used against the suspect in a criminal prosecution.” (Law.Jrank, 2009) The Constitutional law that this Ruling is based on is the Fourth Amendment, which states word for word the following. “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.” (Fourth Amendment, 2009) As one can easily tell, the Rule and the Amendment are both meant to restrict police power and to give the ordinary citizen rights.

There have been arguments that this rule is un-necessary. The Republican majority in 1995 attempted to negate this ruling, fortunately for the average citizen this attempt was overturned. Again, in the recent years there have been further attempts by both sides to adjust or take away this Rule. One such attempt was made when the Patriot Act was passed, while according to the letter of the Act it is meant for foreign terrorists, it has been used within the United States for non-terrorist persons.

According to the Department of Justice, 2005 “Using a Patriot Act provision, FBI agents and examiners were able to trace Darlene Fisher’s messages to a server in Topeka, find Darlene Fisher’s e-mail address, and then trace it to a house in Melvern, Kansas. Darlene Fisher’s real name was actually Lisa Montgomery. Montgomery was arrested and subsequently confessed. Bobbie Jo’s baby, Victoria Jo Stinnett, was found alive less than 24 hours after she was cut from her mother’s womb and she was returned to her father.”

While you will hear arguments, stating that it cannot be used here in the United States that can be shown to be false as one can attest via the above reference. The use of this Act in the United States shows that many in our law enforcement community and government are unwilling to follow the Fourth Amendment and the Exclusionary Rule. It is this author’s opinion that there is no argument that justifies the destruction of our founding documents especially regarding our legal rights.

Some people have argued that we should return to Common Law, this unfortunately could also be seen as a serious mistake. “As stated in a 17^th Century English legal treatise: “And where a Man arrests another, who is actually guilty of the Crime for which he is arrested, it seems, That he needs not in justifying it, set forth any special Cause of his Suspicion, but may say in general, that the Party feloniously did such a Fact, for which he arrested him … .” (Tinsley, Kinsella, Block, 2004) Common law was clear that the authority to pass judgment tends to outweigh the general rights of another. English Common law allowed certain liberties against the common person simply because a person in power decided or could decide that it was okay to do so. The entire idea of the Fourth Amendment and the Exclusionary Rule is to allow a fair system of justice to prevail.

There have been several cases where the Exclusionary Rule has allowed guilty persons to go free as a result; however, it is this author’s opinion that if the Law Enforcement had followed the proper procedure in the first place this would not have been a legal issue in the first place. One of those was the case against William Ayers who founded the “Weather Underground” an organization that planned and executed several bombings against government targets in the United States. In this case, Mr. Ayers was brought to trial only to have the evidence thrown out because of wiretaps that were used in violation of the Fourth Amendment. Other cases include rapists and murderers, some may argue that to stop these men and or women it is fine to sidestep the Fourth Amendment and the Exclusionary Rule however, again it is the author’s opinion that this is not correct. Again if proper warrants had been obtained the result may well have been the indictment of these individuals. There have been far more examples of poor police work leading to bad endings for the “suspects” who were later declared innocent.

For instance Sara Rimer in a New York Times article reported the following, “In 1994 a police SWAT team in Boston broke down an apartment door without warning and tackled an elderly occupant. When the search did not turn up any drugs, the police realized they had raided the wrong home. The elderly man the police had tackled and handcuffed turned out to be a retired minister. The Reverend Accelynne Williams suffered a severe heart attack during the search and died the same afternoon.”

In conclusion, one must assume that without some type of checks and balances the Law Enforcement in the United States would be able to do whatever they wished concerning what they deemed criminal behavior regardless of that person’s right as outlined in the Constitution. As can be seen the Exclusionary Rule and Fourth Amendment are key components to the foundations of the fair and equitable Criminal Justice system in these United States. It is this authors hope that we are able to soon overturn any additional Congressional Acts that further degrade the Fourth Amendment and the Exclusionary rule. Remember as Samuel Adams stated so well in 1771, “The truth is all might be free if they valued freedom, and defended it as they ought.”

References:

Department of Justice, (2005).

Fact sheet: USA Patriot act provisions set for reauthorization. From http://www.usdoj.gov/opa/pr/2005/April/05_opa_163.htm

Fourth Amendment, Initials. (2009).

U.S. constitution: fourth amendment fourth amendment – search and seizure, findlaw. Retrieved from http://caselaw.lp.findlaw.com/data/constitution/amendment04/

Law. Jrank, (2009). Exclusionary rule – further readings.

Retrieved from http://law.jrank.org/pages/6644/Exclusionary-Rule.html

Rimer, S. (1994, March 28).

“Raid on wrong Boston home results in death of a minister. New York Times, (pg. A1), Retrieved from http://www.nytimes.com/1994/03/28/us/minister-who-sought-peace-dies-in-a-botched-drug-raid.html?pagewanted=2

Adams, S. (1771) Article in the Boston Gazette dated October 14, 1771

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Originally posted at Examiner.com © Jesse Mathewson

 

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The purpose of this paper is to provide support for the use of the Patriot Act as well as support against the use of the Patriot Act. It is the goal of the author to provide a logical and sound base to see the Patriot Act from both sides. As someone who is very much against any action that may re-define or change our Constitutional rights locating arguments for the use of this Act will be an interesting challenge. So let us start with the reasons why it was formed and potential benefits to the people.

Our 43^rd president George W. Bush stated the following regarding the Patriot Act “When it came time to renew the act, for partisan reasons, in my mind, people have not stepped up and have agreed that it’s still necessary to protect the country,” Bush said. “The enemy has not gone away – they’re still there. And I expect Congress to understand that we’re still at war and they’ve got to give us the tools necessary to win this war.” (Bumiller, 2006) According to our former President, this Act is necessary for the protection of our citizens.

We look to our current president and his views concerning this Act and we see similar reasoning in place. “That is why, as it has come to time to reauthorize the USA PATRIOT Act, we have been working in a bipartisan way to do both, to show the American people we can track down terrorists without trampling on our civil liberties, to show the American people that the Federal Government will only issue warrants and execute searches because it needs to do so, not because it can do so.” (Obama, 2005) We can see that the reasoning is similar though even in his case he can see the potential for abuse. “Giving law enforcement the tools they need to investigate suspicious activities is one thing and it is the right thing. But doing it without any real oversight seriously jeopardizes the rights of all Americans and the ideals America stands for.” (Obama, 2005)

Another argument for the Patriot Act is that by authorizing it we can guarantee that our Law Enforcement community has the proper tools to fight the potential for terrorism inside the United States. Whether this is a proper argument or not remains to be seen, it is the goal of the supporters of the Patriot Act to ensure a safer tomorrow for the citizens of this great nation. There are however many arguments that can be made for the dissolution of or against this Act.

Quite simply the greatest and easiest arguments to use against the Patriot Act can be found in our very own Constitution. That “piece of paper” that it has been claimed George W. Bush said, whether that is true the more interesting item is the simple fact that the Patriot Act effectively invalidates the Constitutional Amendments Four through Eight. By simply seeing what exactly the Patriot Act invalidates we can see whether someone who voted for or pushed for this is really thinking concerning the Constitution.

Now we can see with the original Patriot Act and the “amended extensions” passed more recently its anti-Constitution status remains true. In addition, even though the people supporting it claim it will not be used against domestic crimes, this is not the case as seen in the case of Bobbie Jo Stinnett. “Using a PATRIOT Act provision, FBI agents and examiners were able to trace Darlene Fisher’s messages to a server in Topeka, find Darlene Fisher’s e-mail address, and then trace it to a house in Melvern, Kansas. Darlene Fisher’s real name was actually Lisa Montgomery. Montgomery was arrested and subsequently confessed. Bobbie Jo’s baby, Victoria Jo Stinnett, was found alive less than 24 hours after she was cut from her mother’s womb and she was returned to her father.” (Department of Justice, 2005) Obviously, the bittersweet ending and recovering of the child was a good thing, however, this supposedly “foreign based” Act was in fact used in a non- terrorist crime. This would lead to the assumption that they can indeed use this Act no matter what to countermand ones Constitutional rights.

Section 213 of the Patriot Act allows a court to do the following. “The court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result” (FindLaw, 2001) This section specifically denies one the Fourth Amendment rights regarding search and seizure as well as the Exclusionary Law, if cause is seen by the judge and the Law Enforcement. It means that regardless of innocence or guilt one is denied a jury trial, and is in fact seen as guilty so having to prove ones innocence, which runs against every legal base we have in this nation.

Lastly, we can see that according to Section 215 of the Patriot Act, Law Enforcement personnel can request your library, phone, and other records if they “suspect” that you may be a criminal of worth. Another part of this section states the following “A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production.” (FindLaw, 2001) In addition, as we can see this also runs completely opposite to the Constitution, The Sixth Amendment clearly states the following. “To be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor” (Bill of Rights, 1791) As we can see in just these three instances the Patriot Act while having its positive benefits does in actuality represent a much greater threat to the freedoms of this country and its people.

References:

Bill of Rights, (1791). The United States Constitution.

Retrieved June 26, 2009,

Bumiller, Elisabeth (Wednesday, January 4, 2006).

June 26, 2009. from

http://www.nytimes.com/2006/01/04/world/americas/04iht- patriot.html

Department of Justice, (2005). Fact sheet:

Usa patriot act provisions set for reauthorization . from

http://www.usdoj.gov/opa/pr/2005/April/05_opa_163.htm

FindLaw, (2001). Text of the US Patriot Act of 2001.

PUBLIC LAW 107–56—, Retrieved 2009,

Obama, Barack (2005, December 15). June 26, 2009.

from http://www.govtrack.us/congress/record.xpd?id=109-s20051215-11

© Jesse Mathewson

 

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