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(Editors Note: This article is part of aJust Securityseries in conversation with the new book,The President and Immigration Law, byCristina RodrguezandAdam Cox. The series will bring together expert voices on immigration policy and reform to reflect on the book and to chart a path toward a more sustainable and balanced immigration system. All articles in the series can be found here).

The President and Immigration Law is a book of great importance as we consider near and long term alternatives after a long period of intensifying immigration enforcement. Adam Cox and Cristina Rodrguez offer an original and convincing argument that Congress has given the executive branch wide ranging enforcement powers of which the executive has taken full advantage. Their rich historical account is organized around two distinct geographies, interior enforcement (including deportation) and external enforcement (including admissions and, to some extent, the border ). This is appropriate for many issues, but it leaves neglected the U.S. border regions, especially the land border with Mexico, characterized by exceptional discretion and lack of enforcement restrictions. Legitimate trade and travel at borders, which are vital to the U.S. borderland economy and society (and indeed much of the interior) also need attention, as the extraordinary discretion and enforcement powers of the borderlands impact licit flows as well as illicit. To be fair, The President and Immigration Law does touch on some borderland issues in their coverage of border patrolling. Butconsistent with Cox and Rodrguezs analysismore remains to be said.

Life on the Border

The U.S. side of the borderlands has a large resident population, with over three-quarters of them U.S. citizens. While there is no single definition with easily accessed data, an often-used metric, all the U.S. counties that touch on the Mexican border, had 7.8 million people in 2019 (calculated from the U.S. census by the author). Of this, 56.4 percent is Hispanic. Immigration policing in this region with reduced restrictions can justifiably be characterized as racialized (especially because, as we will see, people of Mexican-origin are legally and practically profiled). Some of what I say applies also, but in less intensive form, to the Canadian land border and all ocean (and Great Lakes) borders.

Search and Seizure Discretion in the 100-Mile Zone

A 100-mile deep border zone brings a number of impingements on rights that profoundly impact life beyond the crossing of the actual boundary; here the enforcement discretion that Cox and Rodrguez discuss is at its zenith. In the U.S.-Mexican borderlands it is implemented through a chain of checkpoints on all main roads departing the heavily settled area near the border itself. Other than taking remote pathswhich itself provides reasonable suspicion for a Border Patrol stopeverybody has to subject themselves to warrantless questioning about residency, with sequelae (i.e., being pulled to the side for intensive questioning, putatively based on accumulated legal reasons, but in practice a series of social and psychological judgments involving race, class, and so forth). At airports and other transport hubs well inside the boundary Customs and Border Patrol (CBP) scrutinizes everyone through visual inspection and warrantless pull-asides, even for domestic-origin, domestic-destination travel. On land, the Border Patrol typically boards common carriers to question riders (with permission of the carrier, though not of the passengers; passengers are expected to answer about residency status)). Worthy of note is that racial profiling is explicitly allowed by executive branch policy at border crossings, checkpoints, and airports. The extreme executive discretion that characterizes immigration policy and especially border enforcement thus results in the normalization of search criteria which would be unacceptable anywhere else in the country.

Search and seizure protections are diminished in other ways, whether in law or practice, in the border region, even when not directly crossing the international boundary or detected doing so. Within 25 miles of the border, the Border Patrol can, without permission or a warrant, enter private property. Most of the border population lives within this 25-mile zone, except for Tucson, Arizona, and northern San Diego County, California. Intrusive Border Patrol operations at night that noisily enter propertiesto the point of climbing on roofsand brightly illuminated residential areas, are reported by the residents of Sunland Park, New Mexico, a poor and predominantly Hispanic community. However, given the discretion granted to the Border Patrol in this zone, even these complaints may not be legally actionable.

Brief stops and questioning of motorists and passengers, and pedestrians (roving patrols), ostensibly are governed by standard Fourth Amendment guidelines within the 100-mile strip outside checkpoints. In practice, however, Border Patrol is weakly limited by the governing court decisions; Border Patrol trains officers on a list of 21 articulable facts that are almost infinitely applicable, and, as a Patrol Agent told me, nobody really worries about them anyway. Racial profiling is permitted in roving stops by Brignoni-Ponce if there are other articulable facts. Brignoni-Ponce offers a kind of backdoor permission, since profiling solely is forbidden, but additional factors are almost always available. In fact, the real constraint on racial profiling of Mexican-origin or similar people in the borderlands is volume, not legal protections against discriminatory enforcement. Hispanic or Latino persons make up such a large percentage of the population that racial/ethnic profiling does not distinguish people enough. CBP agents and officers therefore typically combine this profiling with considerations such as class (apparent wealth, work, etc.), geographic area (poor settlements), and so forth. The people whose rights are diminished in practice are working class Hispanic citizens, legal residents, visitors, and unauthorized crossers the populations who are also least likely to defend themselves with private lawyers.

The Infrastructure of Enforcement: Enhanced Surveillance and Exceptional Powers

The density of border policing is hard to convey to someone who does not live in the region. There is widespread surveillance, including stadium lighting, fixed and mobile cameras, radar, helicopters, aerostat balloons, fixed wing aircraft, drones, motion sensors, cell signal sensors, license plate readers, and so forth. For many of these surveillance techniques, there is no public disclosure or documentation of the extent, results, and error rate of the massive collection. These certainly are used in interior policing, but are denser and more intrusive in this region.

There are also 16,700 Patrol Agents. Some are at fixed sites, some are in remote desert locations, but most rove densely inhabited areas with webs of roads. The public image of the border is desolate, which is partly true in some areas, but often this is a fully inhabited region. It is not just being watched that matters (though the impact of this observation should not be discounted). With greater scrutiny comes greater likelihood of being detected in some federal law violation or another, which is especially significant when we note the fine-grained inequalities of exactly who and which localities are most intensively watched within the broader region. The results of disproportionate policing and scrutiny in general have also been well documented and include greater likelihood of entering the criminal justice system. We can expect that these effects map onto the border region, where enforcement scrutiny is as intense as anywhere in the country.

The reduced rights accorded the U.S.-side of the border are epitomized by way that normal rules and procedures are suspended or inapplicable in this zone. For example, Congress has granted the Secretary of Homeland Security the power to waive 48 environmental, cultural, historical and other laws as needed for the construction and maintenance of the border wall; they also made judicial appeal difficult. The widespread use of eminent domain (over 360 cases in less than a year alone, 2007-2008) has, according to the Texas Tribune, involved unfair real estate deals, secretly waiv[ing] legal safeguards for property owners, and ultimately abus[ing] the governments extraordinary power to take land from private citizens in one of Americas poorest regions. In Arizona, the construction of the wall has brought destruction of sacred, burial, and natural sites of the Tohono Oodham people, while in the lower Rio Grande valley it has disrupted an enduring, deep, and meaningful relationship of local people with the river.

Construction of this physical infrastructure has been supplemented in recent years by the declaration of a national emergency at the border in 2019. The executive power to declare emergencies is another instance of exceptionality given to the president by Congress in the National Emergencies Act. As a number of experts have shown, including border-region experts, there is no meaningful emergency involved. Border community organizations and government entities including El Paso County, have responded by suing to enjoin the emergency monies directed to border wall construction; an injunction initially was obtained but is stayed and under appeal.

Unconnected to putative emergencies, National Guard and active duty troops have been assigned to the border nearly continuously from President George H. W. Bush onward; the latest instance started in 2018. The truth is that these operations are mostly symbolic and pointless; they involve such marginally effective tactics as installing huge masses of razor wire along the boundary. The notable exception to this inefficacy is military support for the widespread surveillance described above, which significantly multiplies the reach of oversurveillance. Far from enhancing national security, declaring the border to be in a state of emergency is publicly demeaning to a region actually noted for its low rates of violent crime, and compounds the racist fear and negativity with which the border is viewed. It also adds to the gradual militarization (in a broad sense, as in using low-intensity warfare methods) of this civilian region.

Despite these high-profile declarations and deployments, however, the military remains far less important than the occupation of the borderlands by CBP which has subjected the region, as well as the migrants, to a shocking level of abuse and corruption. U.S. immigration enforcement agencies (especially CBP) have an empirically demonstrated high level of legal, verbal, and physical abuse. These organizations also have serious problems with corruption. CBP has high attrition and disciplinary termination rates, and reports low morale despite being an employer providing exceptionally well-paying jobs in one of the poorest regions of the country.

Community Across Borders

The U.S. borderlands with Mexico are intensely binational. Some elements of Cox and Rodrguezs exposition bear on legal entry into the country, as well as self-presentation for asylum and unauthorized border entry. But the impacts of unleashed executive discretion also need to be placed in the context of the importance and intensity of ordinary border crossing for the region. For example, the El Paso Port of Entry alone in 2018 received north-bound crossing of 811,000 trucks, more than 12 million cars with 22 million passengers, and 7 million pedestrians, yet it is neither the largest commercial port (Laredo) nor non-commercial port (San Ysidro in San Diego County). The economic value of this trade was $81.9 billion. To indicate the personal importance of border crossing, in a random-sample, binational survey (files of the author), 64% of El Paso respondents had crossed within the previous two years while 25% of Ciudad Jurez respondents had crossed; 64% of El Pasoans have close family in Jurez, and 63% of Juarenses have close family ties in El Paso.

Though many people move around the world, and in particular the U.S.-Canada border is similar, it is thus worth emphasizing that for borderlanders, border crossing is economically valuable, personally meaningful, and often frequent. Yet such crossers have long been subject to an exceptional search and seizure regime and recently, serious de facto barriers. The extent of the border search exception to the Fourth Amendment is debated, but the courts have generally accorded the executive branch exceptional powers of search, seizure, and short-term detention.

These exceptional powers are not merely theoretical. People often report long periods made to wait and intensive interrogations when returning to El Paso, without any articulation of suspicion or facts. While constrained in their searches by the enormous volumes of traffic, which limit the time of inspectors and supervisors to be intrusive, inspectors are uneven and some are arrogant and abusive. There is a shortage of inspectors at the southwestern border by the metric of the governments own staffing model; and everyone on all sides is exhausted, cranky, hot, and polluteda bad mix with arbitrary power. The reasons why the ports are underfunded vis--vis Border Patrol is a matter of subtle argument, involving counterfactuals., but we need to consider the argument by Cox and Rodrguez about the prioritization of enforcement by both Congress and the executive.

Enforcement Emphasis Meets COVID

Moreover, since the advent of COVID-19 the Trump administration has engaged in a de facto effort to slow down or even shut the Mexican and Canadian borders. It is difficult to parse what is happening since much of it is not officially stated and is implemented inconsistently, but some elements appear to be these: U.S. citizens and legal residents are allowed to go into Mexico and to return (or if they live in Mexico, to visit the United States), but Mexican visitors with a repeat entry visa (border crossing card) are now denied entry which has negative family and economic impacts. Mexicans are allowed into the United States if they are deemed essential but that is a flexible (not to say hypocritical) term, with strong components of social power (Mexican elites) and economic interests (Mexican truckers, farmworkers, etc.). Inspectors have a great deal of discretion in practice.

The effects of these restrictions apparently disappointed the administration; the flow of people remained high during the spring and summer. The number of people holding rights to cross may have been underestimated by people not familiar with the borderlands. So, unannounced, there has been an aggressive effort to slow down traffic. This includes longer time in inspectiondebatably appropriateand reducing available lanes, which is counterproductive, unnecessary, and unquestionably punitive. This policy seems to merely continue the Stephen Miller-designed xenophobic policy of using public health justifications to restrict immigration and though the public health emergency is real, the policy is no more rational than previous iterations.

The slowdowns and arbitrary distinctions at the border compound the use of COVID-19 as a rationale finally to stop all asylum-seekers, no matter how compelling their cases, from reaching safety in the United States. A description of all the anti-asylum measures exceeds the bounds of this essay (see this summary), and broadly is consistent with Cox and Rodrguezs long history of exclusionary approaches to migration.

Two points may not be well known, however. The first is that help to refugees (in the social, not strictly legal sense) has been for four decades an important part of the U.S. borderlander ethos, though certainly debated locally and not wholly embraced. This was demonstrated by an enormous outpouring of voluntarism on the U.S.-side of the border in 2018-2019. Trapping refugees in crime-plagued Mexico or returning them to persecution at home, then, cuts them off from a largely sympathetic community.

Second, we now need a critical analysis of the use of quarantine to close or reduce flows through borders, for the present and for the future. Without diving into a legal analysis of the CDCs authority to expel asylum seekers (increasingly the same used to keep Mexican visitors from entry), there is little substantive justification for this policy on its face. There is at least as much COVID-19 in the United States as Mexico (though data in both countries are not completely reliable). Rational public health strategy would involve systematic testing, contact tracing, and isolating or quarantining affected individuals, not separating millions of people by nationality, which particularly affects borderlands.

Paths Forward

We need to envision the future. The provision of enormous resources with wide discretion and few legal restrictions, combined with an enforcement orientation, needs to be addressed on both long-term and immediate horizons. In the short term, CBP desperately needs top to bottom reform. An important thrust of our recent work has been detailing much needed reforms. Issues with CBP are typically treated as a matter of a few bad apples. We propose instead that accountability needs to be extended energetically through the organization, whereby supervisors and managers are held responsible for the conduct of their officers. CBP, an organization given wide legal latitude, and operating among people accorded little voice or respect, must be held accountable.

In the long term, immigration is more positively than negatively viewed for the first time in Gallups long time-series of opinion polling. This is a trend we can build on to change the scenario described in The President and Immigration Law. Legislating generous and fair future legal immigration, refuge, and asylum, by reducing the size of unauthorized migration flows, will reduce the enforcement burden on the border. But less dramatically, Congress, the Courts, and the executive branch all need to address, in many detailed ways, a key tendency. We have treated the U.S. borderlands almost as if it is an unpopulated enforcement zone, as if it were external to the country, even when it is filled with U.S. residents and visitors, going about their daily lives. The latter understanding encourages us to limit unbounded executive discretion through reviving rights, respect, and accountability in ways powerfully indicated in this book. Our borderland needs to be valued as a place of relationship, rather than racialized fear, and U.S. borderlanders viewed as full members in the national society.

Original post:
The President and Immigration Law Series: The Consequences of the Free Rein of Enforcement on Borderlands Society - Just Security

Senate Democrats are portraying Supreme Court nominee Amy Coney Barrett as a menace to health care, abortion access, and democracy. During Barrett's confirmation hearing today, Sen. Ted Cruz (RTexas) countered that argument by detailing some of the ways in which justices nominated by a Democratic president could be expected to endanger civil libertiesin particular, freedom of speech and the right to armed self-defense.

When Hillary Clinton ran for president in 2016, Cruz noted, she promised to nominate justices who would vote to overturnCitizens United v. Federal Election Commission, the 2010 decision in which the Supreme Court concluded that restrictions on political speech by labor unions and corporations, including an ideologically diverse array of nonprofit advocacy groups, were inconsistent with the First Amendment. The issue in that case, Cruz reminded us, was whether "a small nonprofit organization based in D.C." could be fined for airing and promoting "a movie critical of a politician"Clinton herselfclose to an election, which qualified as a forbidden "electioneering communication."

During the first round of oral argument inCitizens United, Cruz noted, Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the Constitution would allow Congress to ban material like Hillary: The Movie not just on radio or TV but in other media as well, such as DVDs, the internet, and books. Stewart said yes, noting that the ban on "express advocacy" by corporationsspeech that does not merely praise or pan a candidate but explicitly supports his election or defeatwas not limited to radio and TV.

"That's pretty incredible," Alito replied. He then pressed Stewart to say whether a book containing express advocacy could be banned if it were published by a corporation (as books typically are). After much hemming and hawing, Stewart again said yes. He did note that the ban on express advocacy made an exception for media corporations such as book publishers, without committing himself on whether such an exception was constitutionally required.

That exchange was "truly chilling," Cruz said, since it reflected "a terrifying view of the First Amendment." The book-banning claim also startled Justice Antonin Scalia. "I'm a little disoriented here, Mr. Stewart," he said. "We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?"

The discussion of book bans was a turning point in the case. By exposing the breadth of the censorship power claimed by the government, it spurred the justices to schedule a highly unusual second round of oral arguments to consider whether a 1990 precedent upholding a state ban on express advocacy should be revisited. The ultimate result was a 5-4 decision that overturned the rule against express advocacy as well as the restrictions on electioneering communications.

Given the closeness of that vote, Clinton's promise to nominate justices hostile to Citizens Unitedcould have had serious consequences for freedom of speech, and not in a good way. Joe Biden, who supports a constitutional amendment that would not only "end Citizens United" but "prevent outside spending from distorting the election process," seems to take an even narrower view of what Americans should be allowed to say about politicians like him.

In addition to supporting restrictions on political speech, Cruz noted, Democrats have a blind spot when it comes to the Second Amendment. While Democrats talk about "reasonable gun control," he said, that "is not what was at stake" in District of Columbia v. Heller, the 2008 decision in which the Supreme Court, also by a 5-4 vote, overturned a D.C. law that banned handguns outright and effectively made it illegal to use even long guns in defense of one's home and family. "The position of the four dissenters"all nominated by Democrats"was that the Second Amendment does not provide for any individual right to keep and bear arms whatsoever," Cruz pointed out, meaning it imposes no restrictions at all on gun laws.

The Democratic platform, which this year talks a lot about gun control but does not even pay lip service to the Second Amendment, likewise seems to view it as a nullity. The implication of that view, Cruz observed, is that "the federal government, the state government, [or] the city could ban guns entirely, could make it a criminal offense for any one of us to own a firearm, and no individual would have any judicially cognizable right to challenge that. That is a radical reading of the Constitution. That is effectively erasing the Second Amendment from the Bill of Rights."

The point is not that Republicans are generally sounder on civil liberties than Democrats. Even when it comes to freedom of speech, Cruz himself is an unreliable ally who recently suggested that a movie he did not like should be banned.

Nor is the point that Republican Supreme Court nominees will always be safer bets for people who want the entire Bill of Rights to be respected. A Republican nominee might be a staunch defender of the Second Amendment (as Barrett clearly is) but less reliable when it comes to, say, due process or the Fourth Amendment (although Barrett looks pretty good on both counts).

The point is that, contrary to what Democrats want us to believe, threats to civil liberties do not emanate exclusively from either major party, and neither does concern about them.

More here:
Defending Amy Coney Barrett, Ted Cruz Highlights the Threats That Democrats Pose to Civil Liberties - Reason

A North Carolina mother filed a civil rights lawsuit last Friday against a policeman who handcuffed and held her autistic 7-year-old son prone on the ground for nearly 40 minutes.

Body camera footage of the September 2018 incident, first published by WSOC-TV, shows former Statesville, North Carolina, school resource officer Michael Fattaleh pulling the child's arms behind his back and handcuffing him.

According to the lawsuit, the boy, who is identified only by the initial L.G., had been diagnosed with autism spectrum disorder the previous year and placed in a special needs classroom. On September 11, 2018, L.G. became overwhelmed and began acting out and spitting in class. He was taken to a "quiet room" to calm down when Fattaleh allegedly walked by and saw the boy spit on the ground. Fattaleh handcuffed L.G.'s hands behind his back and restrained him stomach-down on the floor.

Staff placed a pillow underneath L.G.'s head, and Fatalleh asked him several times if he could breath and if he was comfortable. But he also appeared to taunt L.G. at times.

"If you, my friend, are not acquainted with the juvenile justice system, you will be very shortly," Fattaleh says at one point in the body camera footage. "You ever been charged with a crime before? Well, you're fixing to be."

At another point, Fattaleh puts his knee on L.G's back and says, "Have you ever heard the term 'babysitter?' I take that term literally, my friend."

L.G.'s mother, who is also not named in the lawsuit, arrived to pick him up. Fatalleh told her L.G. was facing one to two counts of assault. The boy was not charged, and Fatalleh resigned from the department shortly after the incident.

The suit, which also names the city of Statesville and the Iredell-Statesville Board of Education as defendants, argues that Fatalleh unreasonably restrained L.G., violating his Fourth Amendment rights and inflicting emotional distress.

"It is incomprehensible to me that anyone would think this response is appropriate and necessary," Alex Heroy, a lawyer representing the family, told The Washington Post. "You don't need to put metal handcuffs on a 7-year-old and pin them down and turn their arm."

Yet it happens, and more frequently than one might think. In August, body camera footage emerged showing officers in Key West, Florida, trying and failing to handcuff an eight-year-old boy, whose wrists were too small for the cuffs. An Orlando school cop made national headlines last September when he arrested a six-year-old girl.

ABC News reported last year that, according to FBI crime data, 30,467 children under the age of 10 were arrested in the United States between 2013 and 2018. During the same period, 266,000 children between the ages of 10 and 12 were arrested.

In the wake of the police killing of George Floyd earlier this year, there have been increased calls from civil rights groups and criminal justice advocates to get police out of schools, and several major citiesMinneapolis, Denver, Seattle, Charlottesville, and Portland, Oregonhave disbanded or slashed the budgets of these programs.

Activists point to viral videos of school resource officers using excessive force on children to bolster their claims that police in schools contribute to the so-called school-to-prison pipeline. In February, an officer at a high school in Camden, Arkansas, was relieved of duty after video showed him putting a student in a chokehold and lifting the student off the ground. Last December, a North Carolina officer was fired after he brutally body-slammed a middle-schooler. In November, a sheriff's deputy in Florida was arrested and charged with child abuse after a video showed him body-slamming a 15-year-old girl at a special needs school.

Civil liberties groups and disability rights advocates have long warned that a surge in the number of Florida school resource officers was leading to unnecessary criminalization and use of force against minorities and children with disabilities. The investigation found several cases where children with diagnosed behavioral disorders were restrained, handcuffed, and involuntarily committed for psychiatric evaluations because of behavior beyond their control. These cases often lead to regression and trauma for the kids involved.

According to the lawsuit, L.G. is now being homeschooled.

Excerpt from:
North Carolina Mother Sues School Resource Officer Who Handcuffed and Pinned Her 7-Year-Old Autistic Son - Reason

The Fourth Amendment has been interpreted to mean that law enforcement cant serve a warrant on tech companies like Google to try and find out what devices were near the scene of a crime. Federal courts have started to rule that police cant ask for information on every device near the scene of a crime, otherwise known as a geofencing warrant or reverse location request. These reverse location requests have increased in use around the country over the last few years and have resulted in some high profile cases of wrongful accusations. After Arizona police served a reverse location request on Google following a murder back in 2018, they ended up wrongfully accusing Jorge Molina. Molina is now suing Google for $1.5 million dollars.

These types of requests to Google are so common that Google has a name for where the data is kept: The Sensorvault. As the New York Times put it, a reverse location request turns the business of tracking cellphone users locations into a digital dragnet for law enforcement. Usually, the government asks Google for a list of cellphones that were in the vicinity of the crime during the timeframe of the crime, then narrows down the list of provided data to specific phones that the police want further, non-anonymized data from. Now, multiple courts in California and Illinois have ruled that such wide geofencing warrants are unconstitutional because they violate the Fourth Amendment. This is something that the Electronic Frontier Foundation has been saying for years and the courts finally agree.

In the past, law enforcement has been able to convince judges that their reverse location requests arent unconstitutional because they are limited in scope usually focusing on a small location and for short periods of time. However, this opinion has been shot down by U.S. Magistrate Judge M. David Weisman in a recent Chicago reverse location request. Judge Weisman wrote in the recently unsealed opinion:

the geographic scope of [the] request in a congested urban area encompassing individuals residences, businesses, and healthcare providers is not narrowly tailored when the vast majority of cellular telephones likely to be identified in this geofence will have nothing whatsoever to do with the offenses under investigation.

Judge Weisman also wrote about his concern that geofencing warrants are being overused:

[t]he governments undisciplined and overuse of this investigative technique in run-of the-mill cases that present no urgency or imminent danger poses concerns to our collective sense of privacy and trust in law enforcement officials.

After being shot down by Judge Weisman, law enforcement altered marginally altered their request and were then shot down by Judge Gabriel Fuentes. Judge Fuentes drew on a 1979 Supreme court case that established that law enforcement searching a bar and bartender could not search the bars patrons.

Government agencies can still use fake cell towers or fly a plane with special equipment over a protest and try to get information about smartphones on the ground that way. In fact, law enforcement could also buy the information directly from cell phone companies who sell real time location information from smartphones to police and even bounty hunters. Alternatively, the government is also getting information from smartphones because they have access through an SDK embedded by government contractor Anomaly Six in a list of 500 popular apps. Even if the SDK only reports back what other apps are on the device, researchers have proven that a list of apps used or general internet browsing activity can be used to reidentify someone as a type of digital fingerprint and thats without the use of actual browser fingerprinting. These types of more targeted attacks might result in information that might not hold up in court the same way information derived from a reverse location request warrant would, though. All in all, the recent court rulings should hopefully tamper the use of geofencing warrants by law enforcement and should still be considered a victory for our constitutional rights.

See the original post here:
Federal courts rule that reverse location requests by police violate the Fourth Amendment - Privacy News Online

By John W. Whitehead

( Sono Creative stock.adobe.com)

No one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end.George Orwell

You can map the nearly 20-year journey from the 9/11 attacks to the COVID-19 pandemic by the freedoms weve lost along the way.

The road we have been traveling has been littered with the wreckage of our once-vaunted liberties, especially those enshrined in the Fourth Amendment.

The assaults on our freedoms that began with the post-9/11passage of the USA Patriot Actlaid the groundwork for the eradication of every vital constitutional safeguard against government overreach, corruption and abuse.

The COVID-19 pandemic with its lockdowns, mask mandates, surveillance, snitch lines for Americans to report their fellow citizens for engaging in risky behavior, and veiled threats of forced vaccinations has merely provided the architects of the American police state with an opportunity to flex their muscles.

These have become mile markers on the road to tyranny.

Free speech, the right to protest, the right to challenge government wrongdoing, due process, a presumption of innocence, the right to self-defense, accountability and transparency in government, privacy, press, sovereignty, assembly, bodily integrity, representative government: all of these and more have become casualties in the governments ongoing war on the American people. In the process, the American people have been treated like enemy combatants, to be spied on, tracked, scanned, frisked, searched, subjected to all manner of intrusions, intimidated, invaded, raided, manhandled, censored, silenced, shot at, locked up, denied due process, and killed.

What the past 20 years have proven is that the U.S. government poses a greater threat to our individual and collective freedoms and national security than any terrorist, foreign threat or pandemic.

In allowing ourselves to be distracted by terror drills, foreign wars, color-coded warnings, partisan politics, pandemic scares, and other carefully constructed exercises in propaganda, sleight of hand, and obfuscation, we failed to recognize that the U.S. governmentthe government that was supposed to be a government of the people, by the people, for the peoplehas become theenemyof the people.

Indeed, the U.S. government has grown so corrupt, greedy, power-hungry and tyrannical over the course of the past 240-plus years that our constitutional republic has since given way to anidiocracy, and representative government has given way to akleptocracy(a government ruled by thieves) and akakistocracy(a government run by unprincipled career politicians, corporations and thieves that panders to the worst vices in our nature and has little regard for the rights of American citizens).

Although the Bill of Rightsthe first ten amendments to the Constitutionwas adopted as a means of protecting the people against government tyranny, in America today, the government does whatever it wants, freedom be damned.

We the people have been terrorized, traumatized, and tricked into a semi-permanent state of compliance by a government that cares nothing for our lives or our liberties.

The bogeymans names and faces have changed over time (terrorism, the war on drugs, illegal immigration, a viral pandemic), but the end result remains the same: in the so-called name of national security, the Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded with the support of Congress, the White House, and the courts.

What we are left with today is but a shadow of the robust document adopted more than two centuries ago. Sadly, most of the damage has been inflicted upon the Bill of Rights.

Here is what it means to live under the Constitution, post-9/11 and in the midst of a COVID-19 pandemic.

TheFirst Amendmentis supposed to protect the freedom to speak your mind, assemble and protest nonviolently without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans should not be silenced by the government. To the founders, all of America was a free speech zone.

Despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault.Increasingly, Americans are being arrested and charged with bogus contempt of cop charges such as disrupting the peace or resisting arrest for daring to film police officers engaged in harassment or abusive practices. Journalists are being prosecuted for reporting on whistleblowers. States are passing legislation to muzzle reporting on cruel and abusive corporate practices. Religious ministries are being fined for attempting to feed and house the homeless. Protesters are being tear-gassed, beaten, arrested and forced into free speech zones. And under the guise of government speech, the courts have reasoned that the government can discriminate freely against any First Amendment activity that takes place within a government forum.

TheSecond Amendmentwas intended to guarantee the right of the people to keep and bear arms. Essentially, this amendment was intended to give the citizenry the means to resist tyrannical government. Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right,Americans remain powerless to defend themselves against SWAT team raids and government agents armed to the teeth with military weapons better suited to the battlefield.As such, this amendment has been rendered null and void.

TheThird Amendmentreinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizens home without the consent of the owner. With the police increasingly training like the military, acting like the military, and posing as military forcescomplete with heavily armed SWAT teams, military weapons, assault vehicles, etc.it is clear thatwe now have what the founders feared mosta standing army on American soil.

TheFourth Amendmentprohibits government agents from conducting surveillance on you or touching you or invading you, unless they have some evidence that youre up to something criminal. In other words, the Fourth Amendment ensures privacy and bodily integrity.Unfortunately, the Fourth Amendment has suffered the greatest damage in recent years and has been all but eviscerated by an unwarranted expansion of police powersthat include strip searches and even anal and vaginal searches of citizens, surveillance (corporate and otherwise) and intrusions justified in the name of fighting terrorism, as well as the outsourcing of otherwise illegal activities to private contractors.

TheFifth Amendmentand theSixth Amendmentwork in tandem. These amendments supposedly ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without the right to an attorney and a fair trial before a civilian judge. However,in the new suspect society in which we live, where surveillance is the norm, these fundamental principles have been upended.Certainly, if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights.

TheSeventh Amendmentguarantees citizens the right to a jury trial. Yetwhen the populace has no idea of whats in the Constitutioncivic education has virtually disappeared from most school curriculumsthat inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. However, as a growing number of citizens are coming to realize, the power of the jury to nullify the governments actionsand thereby help balance the scales of justiceis not to be underestimated. Jury nullification reminds the government that we the people retain the power to ultimately determine what laws are just.

TheEighth Amendmentis similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, the Supreme Courts determination that what constitutes cruel and unusual should be dependent on the evolving standards of decency that mark the progress of a maturing society leaves us withlittle protection in the face of a society lacking in morals altogether.

TheNinth Amendmentprovides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereigntythe belief that the power to govern flows upward from the people rather than downward from the rulersis clearly evident in this amendment. However, it has since beenturned on its head by a centralized federal government that sees itself as supremeand which continues to pass more and more laws that restrict our freedoms under the pretext that it has an important government interest in doing so.

As for theTenth Amendments reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution,that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC, power elitethe president, Congress and the courts.

If there is any sense to be made from this recitation of freedoms lost, it is simply this:our individual freedoms have been eviscerated so that the governments powers could be expanded.

Mind you, by government, Im not referring to the highly partisan, two-party bureaucracy of the Republicans and Democrats. Rather, Im referring to the Deep Statethe corporatized, militarized, entrenched bureaucracy that has set itself beyond the reach of the law and is unaffected by elections, unaltered by populist movements, and staffed by unelected officials who are, in essence, running the country and calling the shots in Washington DC, no matter who sits in the White House.

This is a government that, in conjunction with its corporate partners, views the citizenry asconsumers and bits of datato be bought, sold and traded.

This is a government thatspies on and treats its citizens as if they have no right to privacy, especially in their own homes.

This is a government that is laying the groundwork toweaponize the publics biomedical dataas a convenient means by which to penalize certain unacceptable social behaviors.

This is a government that subjects its people toscans, searches, pat downs and other indignities by the TSAandVIPR raids on so-called soft targetslike shopping malls and bus depots by black-clad, Darth Vader look-alikes.

This is a government that usesfusion centers, which represent the combined surveillance efforts of federal, state and local law enforcement, to track the citizenrysmovements, record their conversations, and catalogue their transactions.

This is a government whose wall-to-wall surveillance has given rise to a suspect society in which the burden of proof has been reversed such that Americans are now assumed guilty until or unless they can prove their innocence.

This is a government that treats its people like second-class citizens who have no rights, and is working overtime to stigmatize and dehumanize any and all who do not fit with the governments plans for this country.

This is a government that usesfree speech zones, roving bubble zones and trespass lawsto silence, censor and marginalize Americans and restrict their First Amendment right to speak truth to power. The kinds of speech the government considers dangerous enough to red flag and subject to censorship, surveillance, investigation, prosecution and outright elimination include: hate speech, bullying speech, intolerant speech, conspiratorial speech, treasonous speech, threatening speech, incendiary speech, inflammatory speech, radical speech, anti-government speech, right-wing speech, left-wing speech, extremist speech, politically incorrect speech, etc.

This is a government that adopts laws that criminalize Americans for otherwise lawful activities such asholding religious studies at home,growing vegetablesin their yard, andcollecting rainwater.

This is a government that persists in renewing the National Defense Authorization Act (NDAA), which allows the president and the military to arrest and detain American citizens indefinitely.

This is a government that saddled us with the Patriot Act, which opened the door to all manner of government abuses and intrusions on our privacy.

This is a government that, in direct opposition to the dire warnings of those who founded our country, has allowed the Department of Homeland Security (DHS) to establish astanding armyby way of programs thattransfer surplus military hardware to local and state police.

This is a government that has militarized Americans domestic police, equipping them with military weapons such as tens of thousands of machine guns; nearly 200,000 ammunition magazines; thousands of pieces of camouflage and night-vision equipment; and hundreds of silencers, armored cars and aircraft, in addition to armored vehicles, sound cannons and the like.

This is a government that has provided cover to police when they shoot and kill unarmed individuals just for standing a certain way, or moving a certain way, or holding somethinganythingthat police could misinterpret to be a gun, or igniting some trigger-centric fear in a police officers mind that has nothing to do with an actual threat to their safety.

This is a government that has allowed private corporations to get rich at taxpayer expense bylocking people up in private prisons for non-violent crimes, while providing Corporate America with asource of cheap labor.

This is a government that has created a Constitution-free zone within 100 miles inland of the border around the United States, paving the way for Border Patrol agentsto search peoples homes, intimately probe their bodies, and rifle through their belongings, all without a warrant. Incredibly, nearly66% of Americans (2/3 of the U.S. population, 197.4 million people) now live within that 100-mile-deep, Constitution-free zone.

This is a government that treats public school studentsas if they were prison inmates, enforcing zero tolerance policies thatcriminalize childish behavior, failing to teach them their rights under the Constitution, and indoctrinating them with teaching that emphasizes rote memorization and test-taking over learning, synthesizing and critical thinking.

This is a government that is operating in the negative on every front: its spending far more than what it makes (and takes from the American taxpayers) and it is borrowing heavily (from foreign governments and Social Security) to keep the government operating and keepfunding its endless wars abroad. Meanwhile, the nations sorely neglected infrastructurerailroads, water pipelines, ports, dams, bridges, airports and roadsisrapidly deteriorating.

This is a government whose gun violenceinflicted on unarmed individuals by battlefield-trained SWAT teams, militarized police, and bureaucratic government agents trained to shoot first and ask questions laterposes a greater threat to the safety and security of the nation than any mass shooter. There are now reportedlymore bureaucratic (non-military) government agents armed with high-tech, deadly weapons than U.S. Marines.

This is a government that has allowed the presidency to become a dictatorship operating above and beyond the law, regardless of which party is in power.

This is a government that treats dissidents, whistleblowers and freedom fighters as enemies of the state.

This is a governmenta warring empirethat forces its taxpayers to pay for wars abroad that serveno other purpose except to expand the reach of the military industrial complex.

This is a government that has in recent decades unleashed untold horrors upon the worldincluding its own citizenryin the name of global conquest, the acquisition of greater wealth, scientific experimentation, and technological advances, all packaged in the guise of the greater good.

This is a government that allows its agents to break laws with immunity while average Americans get the book thrown at them.

This is a government that speaks in a language of force. What is this language of force? Militarized police. Riot squads. Camouflage gear. Black uniforms. Armored vehicles. Mass arrests. Pepper spray. Tear gas. Batons. Strip searches. Surveillance cameras.Kevlar vests. Drones.Lethal weapons.Less-than-lethal weapons unleashed with deadly force.Rubber bullets. Water cannons. Stun grenades. Arrests of journalists.Crowd control tactics. Intimidation tactics. Brutality. Contempt of cop charges.

This is a government that justifies all manner of government tyranny and power grabs in the so-called name of national security, national crises and national emergencies.

This is a government that exports violence worldwide, with one of this countrys most profitable exports being weapons. Indeed, the United States, theworlds largest exporter of arms, has been selling violence to the world in order to prop up the military industrial complex and maintain its endless wars abroad.

This is a government that is consumed with squeezing every last penny out of the population and seemingly unconcerned if essential freedoms are trampled in the process.

This is a government that believes it has the authority to search, seize, strip, scan, spy on, probe, pat down, taser, and arrestanyindividual atanytime and for theslightestprovocation, the Constitution be damned.

In sum, this is a government that routinely undermines the Constitution and rides roughshod over the rights of the citizenry.

This isnota government that believes in, let alone upholds, freedom.

So where does that leave us?

As always, the first step begins with we the people.

Those who gave us the Constitution and the Bill of Rights believed that thegovernment exists at the behest of its citizens. It is there to protect, defend and even enhance our freedoms, not violate them. Our power as a citizenry comes from our ability to agree and stand united on certainfreedom principlesthat should be non-negotiable.

It was no idle happenstance that the Constitution opens with these three powerful words: We the people. In other words, we have the power to make and break the government. We are the masters and they are the servants. We the American peoplethe citizenryare the arbiters and ultimate guardians of Americas welfare, defense, liberty, laws and prosperity.

As I make clear in my bookBattlefield America: The War on the American People, we have managed to keep the wolf at bay so far. Barely.

Our national priorities need to be re-prioritized. For instance, some argue that we need to make America great again. I, for one, would prefer to make America free again.

See the article here:
Mile markers of tyranny: Losing our freedoms on the road from 9/11 to COVID-19 - Augusta Free Press