Sunday, November 27, 2011
Georgia Business Declares New Company Policy: ‘We Are Not Hiring Until Obama Is Gone’
Georgia Business Declares New Company Policy: ‘We Are Not Hiring Until Obama Is Gone’: pA business owner in western Georgia instituted a new company policy recently: “We are not hiring until Obama is gone.” Bill Looman, who owns U.S. Cranes, LLC in Waco, Georgia, explained that while “I’ve got people that I want to hire now,” he didn’t think he would be able to foot the expense “unless some [...]/p
Posted by Chris Anders, Washington Legislative Office at 10:46am
Detention
Senators Demand the Military Lock Up American Citizens in a “Battlefield” They Define as Being Right Outside Your Window
While nearly all Americans head to family and friends to celebrate Thanksgiving, the Senate is gearing up for a vote on Monday or Tuesday that goes to the very heart of who we are as Americans. The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.
Senators need to hear from you, on whether you think your front yard is part of a “battlefield” and if any president can send the military anywhere in the world to imprison civilians without charge or trial.
The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. Even Rep. Ron Paul (R-Texas) raised his concerns about the NDAA detention provisions during last night’s Republican debate. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.
The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.
I know it sounds incredible. New powers to use the military worldwide, even within the United States? Hasn’t anyone told the Senate that Osama bin Laden is dead, that the president is pulling all of the combat troops out of Iraq and trying to figure out how to get combat troops out of Afghanistan too? And American citizens and people picked up on American or Canadian or British streets being sent to military prisons indefinitely without even being charged with a crime. Really? Does anyone think this is a good idea? And why now?
The answer on why now is nothing more than election season politics. The White House, the Secretary of Defense, and the Attorney General have all said that the indefinite detention provisions in the National Defense Authorization Act are harmful and counterproductive. The White House has even threatened a veto. But Senate politics has propelled this bad legislation to the Senate floor.
But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.
In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”
The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.
In response to proponents of the indefinite detention legislation who contend that the bill “applies to American citizens and designates the world as the battlefield,” and that the “heart of the issue is whether or not the United States is part of the battlefield,” Sen. Udall disagrees, and says that we can win this fight without worldwide war and worldwide indefinite detention.
The senators pushing the indefinite detention proposal have made their goals very clear that they want an okay for a worldwide military battlefield, that even extends to your hometown. That is an extreme position that will forever change our country.
Now is the time to stop this bad idea. Please urge your senators to vote YES on the Udall Amendment to the National Defense Authorization Act.
Stanford University Journal
24 February 2010
Law Review Article
Breaking the Law to Enforce It: Undercover Police Participation in Crime
Elizabeth E. Joh - UC Davis School of Law
Posted in Criminal Procedure, Investigation, Law Enforcement, Police
Covert policing necessarily involves deception, which in turn often leads to participation in activity that appears to be criminal. In undercover operations, the police have introduced drugs into prison, undertaken assignments from Latin American drug cartels to launder money, established fencing businesses that paid cash for stolen goods and for “referrals,” printed counterfeit bills, and committed perjury, to cite a few examples.
In each of these instances, undercover police engaged in seemingly illegal activity to gather evidence or to maintain their fictitious identities. Yet unless these acts are committed by “rogue cops” not authorized to participate in illegal activity, these activities aren’t considered crimes. Indeed, they are considered a justifiable and sometimes necessary aspect of undercover policing.
This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. What is authorized criminality? I define it as the practice of permitting covert police officers to engage in conduct that would be criminal outside of the context of an investigation. We can then distinguish it from other covert policing tactics, such as passively deceptive surveillance, or the police adoption of the role of a victim rather than that of a fellow criminal.
Despite its widespread use in covert operations, authorized criminality is the subject of little regulation or guidance. The absence of meaningful regulation is all the more remarkable because authorized criminality implicates some of the most fundamental questions regarding the role of police in a democratic society. These issues involve the control of police discretion, transparency in police decision making, and the moral authority of the police. This editorial discusses these observations in more detail, and then offers proposals that respond to these concerns.
I.
Undercover Participation in Crime: An Introduction
Unlike an impulsive or opportunistic crime, some crimes involve secretive, complex, and consensual activities. The manufacture of methamphetamine, the bribery of local officials, food stamp fraud, prostitution, dog-fighting rings, and, at one time, homosexuality, are examples of such offenses, and they are difficult, if not impossible, to investigate if the police must wait for victim complaints, witness statements, or physical evidence. If these crimes are to be prosecuted successfully, then, the police must infiltrate criminal ranks or play willing victims. While undercover operations may sometimes seek merely to observe criminal behavior (surveillance operations) or to prevent crime from occurring (preventative operations), many operations involve the active encouragement of crime commission (facilitative operations), either through emboldening suspects—short of entrapment—or by weakening potential victims.
The need for authorized criminality arises most often in facilitative operations, when police must both maintain their covert identities as well as encourage the commission of crime. To encourage crime, police may pretend to be drug users or illegal gun buyers looking for a willing seller. Or in “reverse stings,” the police may provide the illegal drugs themselves, or the “buy” money to the suspects. In addition, covert police may often find themselves tested by criminals trying to flush out suspected police among their ranks by testing their willingness to engage in crime. Without the police playing their fictitious roles as closely as possible, criminals could easily exclude those suspected of infiltrating their ranks, simply by refusing to tolerate passive behavior.
II.
Rules for Breaking Rules
The conditions under which undercover police officers may participate in crime have seldom been the subject of regulatory oversight. Instead, what exists is a patchwork of applicable state and federal constitutional law restraints that loosely regulates undercover operations and generally accepts the notion that undercover police violate the criminal law, but are justified in doing so.
Few, if any, covert police have faced direct criminal prosecution, in part because mental state requirements and the public authority defense are likely to shield the officer from criminal liability. In many instances, an undercover officer who participates in criminal activity will lack the required mental state of an applicable crime, and so risks no criminal liability. For example, an undercover officer pretending to be a drug seller will lack the specific intent to sell or distribute that is an element of many drug possession offenses.
In other cases, the public authority defense provides a justification for authorized criminality. This affirmative defense, recognized in every American jurisdiction, justifies otherwise criminal conduct when the action is taken by a law enforcement official in order to effect an arrest, stop a fleeing criminal, or prevent a crime. Because the defense permits the police to engage in otherwise-illegal conduct for legitimate law enforcement purposes, it certainly should apply to the undercover context. Whatever its conceptual underpinnings, however, the limits of the public authority defense have not been rigorously tested. Instances in which undercover police have used this defense are rare, because they are seldom, if ever, prosecuted.
Internal departmental or agency guidelines provide another source of potential control over authorized criminality in undercover operations. At the federal level, the Department of Justice refers to the Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations.1 The Guidelines explicitly consider the involvement of FBI agents in illegal activity during the course of an undercover operation, providing approval for certain activities by “undercover employees” that would, under other circumstances, “constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization.”2 In limited circumstances, then, FBI agents may participate in crimes as an official part of their duties. At the state and local level, however, the use of guidelines for undercover operations varies greatly, ranging from departments with rules comparable to the FBI Guidelines to departments that lack any internal rules at all.
III.
The Harms of Police Participation in Criminal Activity
While police, prosecutors, and judges may defend authorized criminality on the grounds of its practical necessity, it is a practice that produces three significant harms.
First, police decisions about authorized criminality in undercover operations lack basic accountability because of their largely secretive nature. The simple absence of transparency in police decision making can be destructive, in its potential both to breed police abuse as well as to foment public distrust. There is little available public knowledge about the frequency, nature, and conditions of authorized criminality in undercover work. Yet the practice suggests a normative paradox: here, the state permits the police to act seemingly “above the law,” even as they enforce the law.
Second, few legal restrictions constrain undercover police regarding the scope of their permissible conduct in the case of authorized criminality as a practical matter. Critical questions are left to individual agencies and departments to decide. The police have considerable latitude over undercover operations, which can range from a straightforward “buy and bust” to a deep undercover operation that may last years and require significant psychological and social adjustments for the officers involved. The applicable legal doctrines are invoked so infrequently, let alone successfully, in cases of authorized criminality that as limits they are more theoretical than practical.
Finally, undercover participation in crime generates moral uncertainties. The risks to individual officers are especially serious. Occupational hazards are legion. Not only must the undercover officer present and maintain a credible false identity in a criminal milieu, but often he must also gain the confidence of his criminal associates. Maintaining this dual identity can sometimes lead to corruption, disciplinary problems, substance abuse, and sometimes severe psychological problems. Permitting agents to participate in crimes adds yet another layer of strain to this tangle of conflicting demands and loyalties by heightening role confusion.
IV.
Addressing the Challenge of Authorized Criminality
By itself, covert policing raises a host of problems about the optimal mix of effective enforcement tactics and ethical police behavior. The participation in crime by undercover police is a little known and secretive practice that by its very nature challenges core presumptions about democratic policing. When police are permitted to take the additional step of behaving as if they were in fact criminals but for doctrines justifying their conduct, they pose a host of potential harms to themselves, the public trust, and the stability of what it means to enforce the law.
At least three implications follow from this more complete portrait of authorized criminality. First, we should permit much broader public access than is now available to basic information on undercover work, including the use of authorized criminality. Greater transparency not only encourages public trust of the police, it can also help guide substantive regulation of undercover work by providing practical context. Second, encouraging the use of administrative guidelines can create a system of more guided discretion. Guidelines like those adopted by the FBI provide a useful starting point by providing ex ante guidance to covert police before hard decisions must be made. Third, legal scholars of the police must extend their agendas beyond those concerns identified by the U.S. Supreme Court, thus drawing attention to neglected subjects like authorized criminality. Taking their cues from the Court, legal scholarship has taken up many thorny issues of policing left open, unresolved, or problematic by the Court’s Fourth and Fifth Amendment cases, but at the cost of scholarly attention to areas where the Court has paid very little attention, including undercover policing.
Investigative techniques can’t be measured by their ability to secure convictions alone. Covert operations are an important tool of the police, but the unrestrained use of deceptive practices should give us pause. Even the appearance that the police are in some instances above the law is troubling. Over time, we have decided that some police tactics cannot be countenanced in a democratic society, whatever their instrumental value. It may not be possible to eliminate authorized criminality, but we should remain alert to its potential for harm.dingbat
Acknowledgments:
Copyright © 2010 Stanford Law Review.
Elizabeth E. Joh is a Professor of Law at University of California at Davis School of Law.
This Legal Workshop Editorial is based on the following Article: Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155 2009).
JOHN ASHCROFT, U.S. DEP’T OF JUSTICE, THE ATTORNEY GENERAL’S GUIDELINES ON FEDERAL BUREAU OF INVESTIGATION UNDERCOVER OPERATIONS, available at www.legislationline.org/download/action/download/id/1418/file/840c983e5800dd9cf0b6bd2349a5.pdf. ↩
Id. at 12. ↩
Napolitano: How the Government Breaks the Law
By Andrew P. Napolitano
It should be against the law to break the law. Unfortunately, it is not. In early 21st-century America, a dirty little secret still exists among public officials, politicians, judges, prosecutors, and the police. The government - federal, state, and local - is not bound to obey its own laws. I know this sounds crazy, but too many cases prove it true. It should be a matter of grave concern for every American who prizes personal liberty.
When I became a judge in New Jersey, I had impeccable conservative Republican law-and-order credentials. When I left eight years later, I was a born-again individualist, after witnessing first-hand how the criminal justice system works to subvert and shred the Constitution. You think you’ve got rights that are guaranteed? Well, think again.
Eternal vigilance is the price of liberty, particularly when it comes to the American criminal justice system. Nowhere else does the state have greater raw power over an individual’s life, liberty, and property. And nowhere else are our constitutionally guaranteed rights and freedoms under such a relentless, subtle, and ultimately devastating attack.
The deck is grossly stacked in the government’s favor. No wonder, as a recent New York magazine cover story put it, referring to the government’s long winning streaks in criminal trials, “The Defense Rests - Permanently.” No wonder that in 2003 fewer than 3 percent of federal indictments were tried; virtually all the rest of those charged pled guilty.
Being an American means having certain rights and liberties guaranteed by the Constitution and the Bill of Rights. That’s what it has always meant, and that’s what it will continue to mean in the troubled times before us. Most of us take these guaranteed rights and liberties for granted. Most of us live comfortable lives that never bring us in conflict with the criminal justice system. But in many ways, that’s a bad thing, for if you had seen the system as I did, you would never take your guaranteed rights for granted again.
Breaking the Law to Enforce the Law
As a judge, I once heard an infuriating case involving the owner of a small Italian restaurant, an immigrant from Italy who was visited by two well-dressed gentlemen who introduced themselves and asked for weekly payments of a hundred dollars. In return, they promised the restaurant owner that his garbage would be collected on time, he would not have any trouble with labor unions, he would not be the victim of any crime, and no competing restaurant would open in his neighborhood.
He threw them out.
They returned unannounced about six times and every time their demands increased, eventually to a thousand dollars a week, each. After he rebuffed that demand, they said they’d be back the following week with guns, and he’d better get one. Terrified of this threat, and afraid as most immigrants are to involve the police, the restaurant owner borrowed a friend’s gun.
When the two gentlemen returned and asked if he had a gun, the restaurant owner reached into a drawer, pulled out the gun, and pointed it at them. They immediately slapped handcuffs on him! Unbeknownst to him, they were New Jersey state troopers who were trying to either shake him down for money or coerce him into breaking the law.
His prosecution for carrying a gun was assigned to me, along with a similar case involving a nearby Italian bakery.
Before the cases began, I ordered the troopers to appear in my courtroom, to inquire if their schemes were self-directed or authorized by their supervisors. They refused to be so interrogated, whereupon the prosecutors asked me to dismiss both cases, which I did.
The bakery owner was so delighted, he proclaimed in a classic Sicilian accent: “The Judga, he can eata for free for the resta his life!” I never took the owner up on his offer, but I appreciated his sentiments.
Torture and Psychological Abuse
Political ambition can be a powerful motivating factor for government abuse of our rights. Consider one of the cases that helped propel Janet Reno to national stardom. In 1984, Reno faced a serious challenger in her bid for reelection as Dade County’s state attorney. In August of that year, Frank Fuster and his wife, Ileana Fuster, were arrested for sexually abusing more than 20 children who attended their home daycare center. Reno began the case by soliciting Laurie and Joe Braga, both billed as “child abuse experts” with no psychology training, to interview the children.
The Bragas used suggestive and misleading interview techniques to elicit false accusations from the children in the case. The children were brainwashed with fantasies of sexual abuse involving masks, snakes, drills, and other objects, and eventually came out of the interviews thinking they were victims.
Of all the children alleging sexual abuse against Fuster, Reno’s office only presented physical “evidence” that one child was abused. The prosecution invoked a laboratory test suggesting that a child had tested positive for gonorrhea of the throat. However, the lab test that was performed is very unreliable and often gives false positives. Reno’s agents tested for the family of bacteria to which gonorrhea belongs rather than specifically for gonorrhea; other bacteria that could have caused the false positive are harmless and are frequently found to live in children. Of course, the state ordered the lab to destroy the evidence three days later, thereby preventing the defense from challenging the state’s “evidence.”
Recognizing that the case against Fuster was weak, Janet Reno’s final straw was to torture Ileana Fuster physically and mentally to the point where she could be coerced into implicating her husband.
Reno had Ileana isolated from the prison population and placed in solitary confinement, naked. Ileana described her treatment in a 1998 interview: “They would give me cold showers. Two people will hold me, run me under cold water, then throw me back in the cell naked with nothing, just a bare floor. And I used to be cold, real cold. I would have my periods and they would just wash me and throw me back into the cell.”
Late one night, the naked Ileana, according to her lawyer, received a visit in her darkened solitary cell from an intimidating 6-foot-2 woman. The woman told Ileana that she knew that Ileana and her husband were guilty. “But how can that be? We are innocent,” Ileana proclaimed. “Who are you?” “I’m Janet Reno,” the woman said. Ileana repeatedly told Reno that she was innocent, and Reno kept repeating, “I’m sorry, but you are not. You’re going to have to help us.” Reno made several more solitary, nightly visits to the naked Ileana, each time threatening Ileana that she would remain in prison for the rest of her life if she didn’t tell Reno what she wanted to hear.
Finally, Reno hired two psychiatrists from a company called Behavior Changers Inc., who met Ileana 34 times in a one-month period. These psychiatrists claimed to be able to help individuals “recover memories,” but their technique was simply to hypnotize Ileana so that she could be brainwashed into believing that Frank Fuster was a child molester. The coercion eventually worked: with the psychiatrists present and with Janet Reno squeezing her hand, Ileana implicated her husband.
Ileana’s trial testimony against her husband put the final nail in Frank Fuster’s coffin. Reno won the conviction, her reelection bid, her name in the newspaper headlines, and a stepping stone to a position as the nation’s chief law enforcement officer. However, Ileana Fuster has repeatedly retracted her confession and testimony, swearing that she and Fuster never abused any of the children, and that her confession was the product of brainwashing.
Yet, thanks to Janet Reno, an innocent Fuster remains incarcerated for 165 years without the possibility of parole.
Messing with Texans
It is unfair, unwise, and un-American for police to break the law in order to enforce it. A corrupt police officer in Tulia, Texas, a small rural town of about five thousand people, engaged in what one commentator deemed an “ethnic cleansing of young male blacks.”
Thomas Coleman, an undercover narcotics officer, committed one of the worst police atrocities in recent years by arresting 46 people on July 23, 1999. Of those arrested, 39 were black, which amounts to approximately half of the town’s adult black population. Many others were involved in the family or personal relationships with black Americans in an otherwise overwhelmingly white community. Coleman’s previous law enforcement employers knew that Coleman himself had once been arrested for theft during an undercover operation, that he used racial epithets, and that he had a widespread reputation in the Texas law enforcement community as being unreliable and untrustworthy.
Nonetheless, on the basis of Coleman’s testimony, 38 individuals arrested on that day were found to be guilty of drug dealing. Some were sentenced to up to 90 years in prison! Some were coerced into accepting plea bargains under the threat of lengthy imprisonment.
What is most shocking is that the prosecution’s only evidence against these defendants was the testimony of Coleman, the dirty cop. The testimony was uncorroborated: no witnesses or other police officers could confirm that Coleman bought drugs from these defendants. And Coleman could not offer any audio or video surveillance verifying his undercover drug purchases. Not even fingerprint evidence was introduced.
Coleman’s testimony was based solely on notes he scribbled on his stomach and his leg. He did not keep a permanent notebook. At the time of their arrests, these 46 supposed drug dealers possessed no guns, no drugs, and no money. Coleman claimed to have purchased $20,000 worth of cocaine from these “dealers.” Furthermore, some of the individuals who were arrested established that they were miles away from Tulia that day. A few of them neither worked nor lived in Tulia. All of the people arrested that day were either convicted by juries or pleaded guilty. In 1999, Texas attorney general John Cornyn - now a U.S. senator - named Coleman the outstanding law enforcement officer of the year.
The Tulia, Texas, debacle attracted national media attention and a coordinated, multidefendant habeas corpus campaign, coordinated by the NAACP and many law firms. About four years later, the Texas Court of Criminal Appeals exonerated the victims of Coleman’s fraud. Coleman had previously acknowledged that the convictions were based on nothing more than his testimony. While he stated that he was “pretty sure” that all the defendants “deserved” to be behind bars, he admitted to several “mess ups” and stated that some of his own sworn testimony was “questionable.” It is a rare anomaly that police abuses such as that perpetrated in Tulia, Texas, are overturned. You can’t help but wonder how many wrongfully convicted defendants never had the luxury of seeing justice served. It shouldn’t be a luxury.
Coleman currently faces trial for perjury, but the buck does not stop at Thomas Coleman. Coleman’s activities were financed by the federal government’s war on drugs, as he was part of the Panhandle Regional Narcotics Task Force. The Department of Justice encourages officers like Coleman to rack up as many arrests as possible, since the money is allocated to the task forces on the basis of number of arrests, not convictions. Because there is no distinction between high-quality and low-level arrests, the federal government creates an incentive for officers like Coleman to engage in sloppy investigations against low-level offenders, and against the innocent.
Rights No More
The war on terrorism has increased the need to protect vigilantly our civil liberties. In July 2003, the U.S. Department of Justice held a celebration at which it handed out honors and praises to federal agents and lawyers involved in the prosecution of the Lackawanna Six.
It should have handed out indictments instead, because those prosecutors - or at least some of them - violated their oaths to uphold the Constitution in order to coerce six soccer-playing young men from Lackawanna, New York, with no criminal records, into accepting long jail terms, well out of proportion to their alleged crimes.
The six - all Arab Americans in their early 20s, five of whom were born here - were charged in federal court in the Western District of New York with providing aid and support to a terrorist group, before September 11, by attending camps in Afghanistan, learning about weapons, and listening to Muslim clerics preach hatred toward the United States.
They were charged with listening to others - including, in the case of one of them, Osama bin Laden himself - talk about causing America harm and with training for some undefined jihad, even though they said that once they arrived and met the people in the camps, they wanted nothing to do with it. The government actually told a federal judge that since the clerics being heard by the six were preaching violence, the six had committed crimes of violence.
The court rejected that argument out of hand. After reviewing the evidence against the six, the judge wrote that these defendants - like all defendants - are guaranteed due process, and that federal courts should do more than just pay lip service to the guarantees of the Declaration of Independence and the Constitution; they should enforce them.
“We must never adopt an ‘end justifies the means’ philosophy,” the judge wrote, “by claiming that our Constitutional and democratic principles must be temporarily furloughed or put on hold in cases involving alleged terrorism in order to preserve our democracy. To do so would result in victory for the terrorists.”
But within mere yards of where this fair judge sat when he wrote those words, the government lawyers who once swore to uphold the Constitution were plotting to put it on hold.
According to a lawyer for one of the six - himself a former federal prosecutor - the government lawyers implicitly threatened the six during plea negotiations that if they did not plead guilty, if they did not speak up as the government wished, if they did not cooperate in their own prosecutions, if they insisted on their due process rights, the government would declare them to be enemy combatants.
In that case, the so-called defenders of the Constitution threatened, the six would have no due process rights, no trial, no lawyers, no charges filed against them, and they would receive solitary confinement for life.
There is no reported case in American history in which a court allowed a defendant to be told that his insistence on due process would result, not in prosecution and conviction, but in punishment without trial. It has always been the case that when entering a guilty plea - and when negotiating for that plea - the defendant’s fears of punishment were limited to that which the law provides. Today, for the government to threaten that the punishment can be increased by fiat by the president after the crime has been committed is not only unconstitutional, it is tyrannical.
Liberty: Void Where Prohibited
It is only a warped view of American history, culture, and law that could seriously suggest that constitutional rights are discretionary - that any president can strip a person of his due process rights. Let’s be clear: There is no Supreme Court case supporting or authorizing presidential enhancement of punishment, and the Justice Department knows that.
So if it is constitutionally impossible for the government to strip a person of his due process rights, why did the lawyers for the Lackawanna Six let their clients plead guilty and accept six-to-nine-year jail terms? Because they knew that the government had suspended rights before and gotten away with it. They knew that the president had actually declared three people to be enemy combatants and kept them locked up without charges and away from their own lawyers. And before the Supreme Court stepped in, he appeared to be getting away with it.
Protecting Freedom
Ultimately, the fate of American liberty is in the hands of American voters. Though we are less free with every tick of the clock, most of us still believe that the government is supposed to serve the people - fairly, not selectively.
There are some surprisingly direct ways to address the excesses I’ve described. First, Congress and the state legislatures should enact legislation that simply requires the police, all other law enforcement personnel, and everyone who works for or is an agent of the government to be governed by, subject to, and required to comply with all the laws.
That would eliminate virtually all entrapment, and it would enhance respect for the law. If the police are required to obey the same laws as the rest of us, our respect for them and for the laws they enforce would dramatically increase, and their jobs would become easier. In short, it would be against the law to break the law.
Second, Congress and the state legislatures should make it easier to sue the federal and state governments for monetary damages when they violate our constitutional liberties.
The federal government and many states have rendered themselves immune (called “sovereign immunity”) from such lawsuits if the lawsuit attacks the exercise of discretion by government employees. That is nonsense. You can sue your neighbor for negligence if his car runs over your garden or your dog. You can sue your physician if he leaves a scalpel in your belly. You should be able to sue the local police, state police, and the FBI under the same legal theories if they torment you, prevent you from speaking freely, bribe witnesses to testify against you, steal your property, or break the law in order to convict you.
If the Constitution is enforced selectively, according to the contemporary wants and needs of the government, we will continue to see public trials in some cities and secret trials in others; free speech suppressed on inexplicable whims; police targeting the weak and killing the innocent; and government lying to its citizens, stealing their property, tricking them into criminal acts, bribing its witnesses against them, making a mockery of legal reasoning, and breaking the laws in order to enforce them.
This is not the type of government we, the people, have authorized to exist, and it is not the type of government that we should tolerate. We can do better. If government crimes are not checked, our Constitution will be meaningless, and our attempts to understand it, enforce it, and rely on it will be
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