Saturday, July 13, 2013

Remembering Nixon and his Enemies

On June 5, 1970, President Nixon met with FBI Director J. Edgar Hoover, CIA Director Richard Helms (famous for his failed plan to assassinate Fidel Castro), and the heads of the NSA and the Defense Intelligence Agency to discuss a proposed new domestic intelligence system. Nixon claimed to believe that “hundreds, perhaps thousands, of Americans —mostly under 30 — are determined to destroy our society.” He expressed frustration at the fact that these varied intelligence agencies were more concerned with maintaining operational independence and protecting their “turf” than with uncovering agitators attempting to stir up a domestic insurrection. 

Of course, with the benefit of hindsight, we see that the supposed domestic insurrection evaporated once the United States withdrew from Vietnam, and it is reasonable to conjecture that young Americans were far more interested in ending the war than in installing a Communist regime. This is true even if they did wear Chairman Mao t-shirts from time to time, and painted Ho Chi Minh’s profile on a giant LNG storage tank outside of Boston. The under 30 crowd did not destroy society, but they did leave behind some disturbing vestiges such as geriatric motorcycle clubs and the loss of what could have been productive years that were instead spent listening to the Grateful Dead.

On July 14, 1970, President Nixon approved the “Huston Plan,” named for Nixon aide Tom Charles Huston. This plan greatly expanded domestic intelligence-gathering by the FBI, CIA and other agencies. The plan authorized the CIA, FBI, NSA, and military intelligence agencies to escalate their electronic surveillance of “domestic security threats” in the face of supposed threats from Communist-led youth agitators and antiwar groups.

The plan authorized the surreptitious reading of private mail, lifted restrictions against surreptitious entries or break-ins to gather information, authorized the placement of covert informants on college campuses, and established anew, White House-based, “Interagency Group on Domestic Intelligence and Internal Security.” When advised by Huston that parts of this plan were clearly illegal, Nixon responded that he did not want to be informed of the activities undertaken under the auspices of this new agency.

W. Mark Felt, the deputy director of the FBI, later called Huston “a kind of White House gauleiter over the intelligence community.” The term gauleiter refers to a party line enforcer controlling a political district, specifically during the Nazi regime (the reader should be reminded that this comparison to Hitler was made several years before the imposition of Godwin’s Law. It should also be noted that, given his ferocious anti-Semitism, comparisons between Nixon and Hitler might not be as tenuous as one might think). Mr. Felt would later be revealed as the informant Deep Throat (not to be confused with Deep Throat), whose leaks were critical in mobilizing an investigation into the illegal activities of President Nixon.
Within days, J. Edgar Hoover confronted Huston and insisted that his agency would not conduct covert activities against law-abiding Americans without the president’s express authorization. Hoover either resented encroachments on the FBI’s turf or recognized the risk of becoming the scapegoat should the illicit activities be exposed. The Huston Plan was scrapped, days after it was authorized.
Regardless of the failure of the short-lived Huston Plan, Nixon administration officials ordered members of the FBI and other agencies executed the plan to break into the homes of friends and family members of suspected anti-Vietnam War activists. Law enforcement agents followed these instructions, without warrants, in order to uncover any evidence of wrong-doing. Mark Felt would later be imprisoned for his role in directing FBI agents to break into the houses of American citizens to conduct extrajudicial investigations.

W. Mark Felt (right) aroused President Nixon’s wrath. Nixon advised Alexander Haig, “Everybody is to know that he is a goddamn traitor and just watch him damned carefully.”

Mr. Felt once commented to his daughter, “I guess people used to think Deep Throat was a criminal, but now they think he's a hero (source).”

In 1973, CIA Director James Schlesinger reviewed CIA surveillance operations against U.S. citizens. He found numerous of instances of illegal CIA surveillance operations against U.S. citizens going as far back as the 1950’s, including break-ins, wiretaps, and the surreptitious opening of personal mail.  However, the earlier surveillance operations did not directly target U.S. citizens. Instead, the operations were focused on “suspected foreign intelligence agents operating in the United States.” This had changed during the Nixon administration. As Schlesinger discovered, the CIA was focusing its illegal surveillance efforts against antiwar protesters, civil rights organizations, and political “enemies” of the Nixon administration.

The lessons of the Nixon Era amply demonstrate the truth of James Madison’s statement, “All men having power ought to be mistrusted.” And perhaps more to the point, “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”
P.S. With respect to the question, "is there evidence that the apparatus of government is being used TODAY to harass peaceful protestors who have committed no crime?" please refer to the following links: ALEC protests, fracking, Occupy Wall Street, agri-business protests. To see "protesting Keystone XL" defined as "terrorism," go here.

The preceding essay draws extensively from entries located at the History Commons, except where noted.

Monday, July 8, 2013

You are a Criminal

In another post, I explained why believing in the adage “I don’t have to worry because I’ve got nothing to hide” is foolish. It is an adage repeated ad nauseam by people who don’t understand why they should care that the government has access to every American’s phone records and emails. I’m returning to the subject after reading an excellent article. Here’s a quote:

If the federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet (source).
Indeed, it has been estimated that the average adult commits three felonies a day. Given this fact, if the government were to take a dislike to you, it would be very easy for said government to make your life miserable. There is precedent for government officials launching personal vendettas. According to a Stanford University source

We know what happened in the case of QWest before 9/11.  They contacted the CEO/Chairman asking to wiretap all the customers.  After he consulted with Legal, he refused.  As a result, NSA canceled a bunch of unrelated billion dollar contracts that QWest was the top bidder for.  And then the DoJ targeted him and prosecuted him and put him in prison for insider trading -- on the theory that he knew of anticipated income from secret programs that QWest was planning for the government, while the public didn't because it was classified and he couldn't legally tell them, and then he bought or sold QWest stock knowing those things. This CEO's name is Joseph P. Nacchio and TODAY he's still serving a trumped-up 6-year federal prison sentence today for quietly refusing an NSA demand to massively wiretap his customers.
Joe Nacchio’s woes may seem very distant from our own. But it is worthwhile to underscore the fact that plenty of people do commit crimes on a regular basis. Let's say an NSA agent is watching you because someone you know is a friend of someone who once visited a jihadist website. Because of the "plain view doctrine," if the agent discovers that you are guilty of a crime having nothing to do whatever with terrorism, that agent can turn over the information to law enforcement officials.  

So, here are some examples of the sorts of criminal activities that ordinary folk might engage in without even realizing that they are committing felonies. It is a violation of federal law to “unlock” your smartphone, punishable by up to five years in prison and a $500,000 fine (source).  A man in Michigan has been charged with a felony for reading his wife's email, and may face up to 5 years in jail, which seems kind of odd, since the prevailing school of thought appears to be that electronic communications are not private (source). Until April 3, 2013, it was a federal crime for anyone under the age of 18 to read Seventeen Magazine online, based on language in the website's terms of service (source). In several states, it is against the law to collect rainwater that falls onto your property. It is illegal to annoy someone via telecommunications devices of any kind, if you do so anonymously (source).

It is a sad bit of wisdom that may only come with age: power really does corrupt.  A young man like Aaron Hernandez earns millions of dollars and is adored like a demigod by countless football fans; that is power, and apparently this power convinced him that he could literally get away with murder. 

Because power corrupts, we must operate on the assumption that our political leadership is composed of a disproportionate number of corrupt individuals. It is unwise to be indifferent to political leaders when they seek to aggressively expand their power. In granting our leaders new powers we are tempting honest politicians down a path of corruption and inflaming the worst ambitions of those who are already corrupt.  

In a very interesting article here, the author notes that the massive resources of the NSA are not directed toward terrorists at all. Instead, they are focusing on law-abiding Americans. The NSA snoops on popular sites like Facebook, but, according to a terrorism expert, terrorists don't actually use Facebook. Terrorists favor places on the Internet that haven't been indexed by Google or other search engines. At best, the author notes, "the recent revelations concerning Prism and telephone surveillance might deter potential recruits to terrorist causes from using the most visible parts of the Internet. Beyond that, the government’s efforts are much more dangerous to civil liberties than they are to al-Qaeda and other organizations like it."

Note: The New Independent Whig is supported by my admittedly Quixotic and possibly grandiose desire to persuade and inform readers regarding the dire political situation Americans face. Please share links to this page.

Monday, July 1, 2013

The Fourth Amendment: A Eulogy.

The 4th Amendment of the United States Constitution was the product of the strong aversion American patriots felt toward the King’s writs of assistance. A writ of assistance was a legal document by which agents of the Crown could order common folk such as lock-smiths and shopkeepers to aid them in breaking into the homes of people suspected of crimes. 

In the colonies, writs of assistance were most commonly drawn up if Loyalist merchants suspected that a colonist was trading in goods without the assistance of said Loyalist merchants. If a colonist sought to evade the heavy taxes imposed by the Crown and do business with the French or the Dutch, he would be in violation of the law. To prove the crime, agents of the Crown felt no compunction against invading homes looking for contraband goods. At this moment in history, collusion between government and private business was conducted in broad daylight, because the people were in no position to object or resist.

But here the point is this: when the American patriots drew up the Bill of Rights and added the 4th Amendment, they drew on legal precedents that had entered British law. And I want to draw the reader’s attention to one such precedent: the case of Entick vs. Carrington, of 1765. 
John Entick

Mr. Entick was described – in the colorful language of the day – as a denizen of Grubb Street, which is to say, a reporter. He was, by common knowledge, guilty of the crime of association with persons disfavored by the government. In particular, he was a friend of John Wilkes, a Known Terrorist, which is to say, Mr. Wilkes opposed the arbitrary rule of the king and was willing to speak out about his views.

Agents of the Crown broke into Mr. Entick’s home, pried open his chests and drawers, in search of the writings of John Wilkes. Mr. Entick’s attorney reminded the court that, in the eyes of the law, that the home is a castle, and that the law has no business intruding upon it without probable cause. The court agreed.

The Founders applauded the expansion of liberties afforded by Entick v. Carrington and lamented the fact that they were not fully entitled to the same protections. This was one of the grievances that led to the break with Great Britain. And the case of Entick v. Carrington, historians agree, was on the minds of the Founders when they wrote the 4th Amendment. 

In reflecting on the case of Entick v. Carrington, we see that the 4th Amendment right against search and seizure is bound up inextricably with (1) freedom of association: when people enjoy liberty, they are able to associate with whom they choose, (2) freedom of the press: when people enjoy liberty, journalists are free to interview and become acquainted with the views of people even when they are considered enemies of the government, and (3) freedom from fear of one’s fellow citizens, in that law enforcement officials cannot compel private citizens to become their operatives when pursuing legal action against suspects. 

The connection between the 4th Amendment and freedom of association was underscored in a case involving the National Association for the Advancement of Colored People (NAACP).  Organizers sought to open a branch of NAACP in Alabama; the state marshaled its resources to prevent this from happening. From the standpoint of the state of Alabama, the NAACP would cause “irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama.” Yes, there was a time not so long ago when the equality of blacks and whites was viewed as a threat to the State.
The state not only stopped the establishment of a branch of the NAACP in Alabama but demanded that the organizers hand over a list of members. The list of members was not produced and the case went to court. 

The Supreme Court decided that “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the 14th Amendment.” Moreover, 

. . . This court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . Inviolability of privacy in group associations may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
To summarize what has been said thus far: an arbitrary government can move to crush dissent by seizing the papers of dissident voices, and by criminalizing the association of citizens with people who are known or suspected of being dissidents. A government based on liberty will not move to stop the voices of dissidents and will not peer into the associations of private citizens, unless it has compelling evidence that a conspiracy to commit specific crimes is afoot. The government’s only interest is in stopping specific crimes and not “discovering” criminal activities for which there is no basis in evidence. 

The case of NAACP v. Alabama – perhaps surprisingly – was a foundation on which Griswold v. Connecticut was built. Griswold is best known as the case which paved the way for Roe v. Wade by arguing that a Right to Privacy is implicit in the U.S. Constitution. Now, opponents of abortion may rankle at the mention of Roe v. Wade, and I do not wish to turn this essay in the direction of a debate about abortion. But I cannot help but take the moment to reflect on the genius of the Court in recognizing that a Right to Privacy exists. Such a right would imply that law-abiding Americans are entitled to freedom from wiretaps and the secret compilation of their phone calls and Internet activities. 

Yet, it must be pointed out that the genius of the Founders and the U.S. Constitution has not been safe against the actions of corrupt Supreme Court justices. That notable champion for arbitrary and tyrannical government, Justice Rehnquist, decided that the government can compel banks to turn over the records of its customers and that bankers can be compelled to act as agents of law enforcement (United States v. Miller, 425 US 435). This is in flagrant disregard of the Founders’ original intentions. And in Miller we see enshrined the corrupt principle that the institutions with which we conduct our day to day business cannot be regarded as our advocates or allies in the protection of our private affairs because there are no private affairs. Not unless you are among the favored few who keeps his or her wealth in offshore bank accounts -- because, the privileged classes will enjoy rights and liberties that the rest of us do not, once our liberties have departed.

A dissenting voice was offered by Justice Brennan, who said, “The customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable.” If a bank acts in a fiduciary capacity – that is, as a protector of client confidentiality and the interests of its clients – it will not voluntarily consent to sharing client data. And, by extension, a Supreme Court that is mindful of the 4th Amendment’s original intention will respect a bank’s refusal to turn over client data without a compelling state justification for requesting the data. 

The original Constitution, as compared to the Constitutional case law that has amassed in the many years since patriots fought and died for the right to draft that Constitution, have become two very different things. In the wake of the Miller decision, the 4th Amendment has eroded even further.
The following is evidence to the last point. As declared by the Department of Homeland Security:

The plain view doctrine states that if an officer is lawfully on the premises and sees evidence of a crime, the officer can investigate, even if that evidence has nothing to do with the officer’s reason for being there. Similarly, if agents lawfully conducting FISA surveillance discover evidence of a crime, they may use it to prosecute for that offense. It does not matter whether they thought they would hear evidence of the crime or not.

Think about it. According to this way of thinking, anything that a government spy sees or hears during the secret surveillance of a law-abiding American citizen (and we are all law-abiding, until guilt is proven in a court of law) is now in “plain view.” No email, no telephone conversation, no spoken conversation in a “bugged” room, no purchase, no bank account, is private. We live in a world in which our daily business and daily communications are increasingly dependent on electronic conveyances. We live in a world in which electronic devices can hide among our belongings or peer through the walls of our home. 

It is enough that we associate with people who are considered to be terrorists for the government to peer into our lives. And yet, we live in a world in which a person can be branded a terrorist one day, and a hero the next. Consider that Nelson Mandela was considered, by the US government, a terrorist for some 30 years and is now considered by President Obama to be a hero. George Washington would be regarded a terrorist today, had the American colonists lost the War of Independence.  I believe Edward Snowden to be a hero, and the citizens of many countries share this view, and the governments of some countries have chosen to remain neutral on this point, but our government has chosen to label him an enemy of the state. 

I am old enough to remember when it was the Soviet Union that had a view of “crime” and “guilt” that was shared by very few free countries. And the isolation of the Soviet Union in its idiosyncratic ideas of crime and guilt was proof of its illegitimacy. To reiterate, the Fourth Amendment is key to freedom of association, freedom of thought, and freedom to dissent. If it is properly understood and applied, it offers protections against tyranny. If hollowed-out and respected in name only, it is a sign that tyrants are on the march.

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