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Many Democrats are still acquiescing to a George W. Bush-era policy that has been in place for nearly 20 years.

There is still broad bipartisan support for the CDR program, bringing significant risk that Democrats could cut a deal for reforms with significantly less teethand more loopholesthan SAPRA.

Three key provisions of the USA Patriot Act, which give the Trump administration broad surveillance powers, are set to expire on March 15 unless Congress votes to reauthorize them. Sen. Bernie Sanders (I-Vt.) is the only leading democratic presidential candidate in Congress who is publicly opposing them.

I voted against the Patriot Act in 2001, 2006, 2011 and 2015. I strongly oppose its reauthorization next month, he tweeted on February 11. I believe that in a democratic and constitutional form of government, we cannot sacrifice the civil liberties that make us a free country.

One provision is section 215, the bulk metadata collection program exposed by Edward Snowden. This provision underwent modest post-Snowden reforms in 2015, but its essence remains largely intact in the call detail records (CDR) program. The program authorizes the NSA to seize call records of people deemed a targetand the people those targets communicate with. In 2017 and 2018, this provision allowed the government to collect more than 968 million records. The government recently shut down the CDR program, admitting to its overreach, but the legal authority to reinstate it at any time remains.

This CDR program was shuttered by the government because of massive over-collection of millions of Americans records, Sandra Fulton, government relations director for Free Press, tellsIn These Times. At this point, eliminating the CDR program is low-hanging fruit for any reform that is at all acceptable. According to Fulton, even if the CDR program is currently shuttered, keeping it on the books is a problem, because the government could reactivate it at any time. If we find a program that's being an abuse, the government doesn't just get to keep it, she says.

The other two senators among the leading Demoratic candidates, Elizabeth Warren (D-Mass.) and Amy Klobuchar (D-Minn.), have not made similar statements publicly opposing the reauthorization, and neither returned In These Times request for comment.

Sen. Klobuchar voted to reauthorize the Patriot Act in 2011, while Sanders did not (Warren was not yet in the Senate). Both Klobuchar and Warren voted in favor of the USA Freedom Act in 2015, which imposed limited reforms on the Patriot Act; Sanders voted no, citing the inadequacy of the reforms. Warren did, however, vote no on2018 on a bill to extend the NSAs powers to carry out warrantless surveillance for another six years, as did Sanders. Klobuchar voted yes.

Speaking publicly against the Patriot Act could have a significant impact at a time Democrats are still acquiescing to a George W. Bush-era policy that has been in place for nearly 20 years. Last November, Democrats voted overwhelmingly for a measure granting a three-month extension of the three Patriot Act provisions, included in a House resolution to prevent a government shutdown, infuriating civil rights activists. Only 10 Democrats in the House voted against the reauthorization, among them Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.), known as the squad. But Congressional Progressive Caucus (CPC) co-chairs Reps. Pramila Jayapal (D-Wash.) and Mark Pocan (D-Wisc.), and vice chairs, Reps. Ro Khanna (Calif.) and Barbara Lee (Calif.),all voted for it. (Neither Sanders, Warren nor Klobuchar were present for the Senate vote.)

As Sam Adler-Bell previously reported, the CPC said the extension was necessary to negotiate for better reforms, butthose progressives who voted yes caught considerable heat from activists. While we would oppose these authorities under any administration, history demonstrates that mass surveillance disproportionately impacts communities of color, immigrants, and other marginalized groups that Donald Trump is actively targeting, the activist organization Demand Progress said in a statement.

Likely in response to criticism, the CPC now says it doesnt plan to acquiesce to Bush-era spy powers so easily in mid-March.

For far too long, Congress has permitted blatant, unconstitutional violations of Americans Fourth Amendment rights under the PATRIOT Act, co-chairs Jayapal and Pocan told In These Times via email. Any long-term reauthorization of this legislation must contain meaningful and substantial reforms to these legal authorities, as proposed in the Safeguarding Americans Private Records Act (SAPRA), in order to secure our support.

Introduced by Sens. Ron Wyden (DOre.) and Steve Daines (RMont.) and Reps. Zoe Lofgren (DCalif.), Warren Davidson (ROhio), and Pramila Jayapal (DWash.),SAPRA, introduced in the House by on January 24 by Rep. Zoe Lofgren (D-Calif.), would rescind authority for the CDR program. It has attracted support from a coalition of civil rights and privacy organizations, among them Color Of Change, Committee of Concerned Scientists and Indivisible.

However, the organizations note that the reform has shortcomings. In a letter, the coalition said that SAPRA does not, for instance, prohibit backdoor searches under Section 702, a loophole that poses a dangerous threat to Americans privacy by allowing the government to search through communications collected under Section 702 of FISA seeking information about Americans without a warrant. Further, it reauthorizes the so-called lone wolf authority, which has never been used and should be repealed just like the Section 215 CDR program. This lone wolf authority allowsthe government to wiretap someone who is not a U.S. personand not a part of a terrorist organizationbut deemed by the United States to be helping international terrorism (it is believedthat this provision has never been used).

Nonetheless, David Segal, the executive director of Demand Progress, tells In These Timesthat SAPRA is the only genuine reform bill in play.

Whatever this bills shortcomings, its almost certain to face opposition not only from the Trump administration, but from the Democratic Party leadership. House Speaker Nancy Pelosi (D-Calif.) played a significant role in November in pushing Democrats to endorse a reauthorization of the Patriot Actwith no reformsby slipping it into the funding bill. And impeachment manager Rep. Adam Schiff (D-Calif.), who boosted his public profile by emphatically declaring that President Trump is dangerous to this country, was among the yes votes for full reauthorization of that presidents spy powers.

There is still significantbipartisan support for the CDR program, bringing significant risk that Democrats could cut a deal for reforms with less teethand more loopholesthan SAPRA.

A Sanders spokesperson noted to In These Times that the senator has been a supporter of Wyden's efforts to reform the Patriot Act and cosponsored his bipartisan USA RIGHTS Act. The spokespersonindicated that Sanders opposes the current iteration of the Patriot Act but would likely support Wyden's SAPRA legislation in the Senate, as it goes much further to protect privacy and civil liberties than a sunset of Section 215.

By coming out now against the mass surveillance powers, Sanders appears to besignaling to the CPC that it should find its backbone on this issue. And those who stay silent are implicitly encouraging the opposite.

This piece has beenupdated to include remarks from a spokesperson for Sanders that was sent following publication.

More:
Bernie Sanders Is the Only Leading Presidential Candidate Publicly Opposing the Patriot Act - In These Times

The U.S. Supreme Court has long recognized that the Fourth Amendment right to be free from "unreasonableseizure" includes the right to be free from unreasonable "seizure of the person," meaning detainment or arrest. What is more, as the Court held in California v. Hodari D. (1991), "the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," qualifies as a seizure for Fourth Amendment purposes.

The U.S. Court of Appeals for the 10th Circuit, however, apparently never got the memo. In Torres v. Madrid (2019), that court held that no seizure occurred when officers with the New Mexico State Police shot Roxanne Torres twice in the back, because their bullets did not actually stop her from getting away. According to the 10th Circuit, "an officer's intentional shooting of a suspect does not effect a seizure unless the 'gunshotterminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him.'"

It gets worse. The police shot Torres while she was in her car in the parking lot of her apartment building. The officers were there to arrest somebody else but claimed that they saw Torres acting in a suspicious manner. Torres thought she was being carjacked, later testifying that the officers, who were wearing tactical vests, never identified themselves when they approached her. What she saw were threatening figures standing at her car windows. So she drove away and was shot twice while fleeing for her life. Torres only learned that she had been shot by the cops when she was arrested a day later at the hospital. The excessive force complaint that Torres filed against those officers was killed off by the 10th Circuit's ruling.

The U.S. Supreme Court is scheduled to hear oral arguments in Torres's case on March 30. She deserves to prevail. There is no question that the officers engaged in the "application of physical forcewhether or not it succeeded in subduing the arrestee." As Torres and her lawyers point out in their brief, when the officers "shot at Ms. Torres with the intent to stop her from leaving and two of the bullets struck her body, she was in that moment seized within the meaning of the Fourth Amendment, regardless of what happened next."

Precisely. The 10th Circuit's decision should be overruled.

Original post:
The Supreme Court Tackles Police Shootings, Excessive Force, and the Fourth Amendment - Reason

Attorneys for a woman charged with murder in a 1981 former cold case involving the death of a babywant to suppress DNA evidence police obtained from her trash, saying doing so violated her rights.

Theresa Rose Bentaas, 58,was chargedwith first- and second-degreemurder in March 2019 after DNA evidence matched her to a baby who in 1981 was foundwrapped in blankets.

Baby John Doe, named Baby Andrew by the anonymous donor who paid for his funeral, was found in what is now 33rd Street and Sycamore Avenue, with the umbilical cord still attached.

Bentaas' privately retainedattorney, Clint Sargent, on Friday filed a motion to suppress DNA extraction, testing, sequencing and profile evidence. He also filed more than 30 pages in briefs supporting the motion.

Theresa Bentaas(Photo: Minnehaha County jail)

Sargent and co-counsel Raleigh Hansman requested the following evidence be excluded from trial, saying it violated her Fourth Amendment rights:

Laboratory reports, interviews of Theresa and her husband Dirk Bentaas andbuccal swabs of Theresa and Dirk Bentaas.

"As a free member of the general public, law enforcement's extraction of Bentaas' DNA from the items pulled from the trash and the subsequent creation of her DNA profile for the testing of Baby Doe case constitutes an unreasonable search under the Fourth Amendment," Bentaas' attorneys wrote in the brief.

More: Theresa Bentaas posts bond, released from jail

Pulling the trash was lawful under both South Dakota and federal law, but extracting the DNA from the items from that trash pull is a "separate invasion of privacy...that must be considered a separate search under the Fourth Amendment,"the brief states.

If a Fourth Amendment violation is brought up in a case, the defendant must establish a factual connection between the alleged constitutional violation and the challenged evidence.

If Bentaas were to prove the evidence is "fruit of the poisonous tree,"the burden would shift back to the government to show that evidence is untainted.

The brief also states if there wouldn't have been an "illegal search and seizure of Bentaas' DNA," a warrant allowing law enforcement to get swabs from Bentaas or her husband wouldn't have been issued.

The brief goes on to say thatan affidavit in support of a search warrant for Bentaas' buccal swabs didn't showa "fair probability" that evidence of a crime would have been found from Bentaas' buccal swab.

"The decision to seek a search warrant for Bentaas' DNA only after receiving the DNA results from the trash pull items speaks for itself," Sargent writes.

The grave of Baby Andrew John Doe, an infant who was found dead in a ditch in 1981, is shown. Police arrested Theresa Rose Bentaas decades later on Friday, March 8, 2019 after determining through DNA that she was the mother.(Photo: Loren Townsley / Argus Leader)

The brief accuses law enforcement of exaggerating lab results. In January 2019, when Parabon Labs got a DNA match that was possibly "up to a third cousin" in the family tree for Baby Andrew, a detective took the information to put together a basic family tree, according to the brief. The family tree was shared with a Parabon genealogist, who recommended getting follow-up DNA.

Baby Andrew: Theresa Bentaas appears in court, trial date set

"Under the guise of the trash pull, Detective Mertes circumvented the search warrant requirement for DNA and deprived Bentaas of her Fourth Amendment right against unreasonable search and seizure," Bentaas' attorneys wrote in the brief.

The state's "failure to obtain a search warrant to extract, test and sequence the DNA on the items submitted to the SD Forensic Lab violated Bentaas' Fourth Amendment right against unreasonable search and seizure," the brief states.

The state had not filed a response as of Friday.

Up until March 8, 2019, Bentaas was a member of the general public, the brief goes on to say, which gives her greater privacy interest in her DNA.

Baby Andrew's body was exhumed in 2009and sent via FedEx to the University of North Texas, were DNA was extracted. The body was returned to Sioux Falls, where it was buried at St. Michael's Cemetery on Cliff Avenue.

From 2010 to 2018, the DNA profile of Baby Andrew was run through the South Dakota DNA database once per year. No matches were found.

On Jan. 24, 2019,Parabon NanoLabs, Inc. a Virginia company to which Sioux Falls police had sent Baby Andrew's DNA completed a "Genetic Genealogy Report," a lead-generation tool to identify remains by making connections through DNA and genealogy.

A DNA profile found possible family trees, include "what they had found so far was approximately a third cousin which was fairly far out from the direct DNA of this baby," according to the brief.

That report led police to a Sioux Falls couple, Theresa Rose (Josten) Bentaas and Dirk Bentaas.

Police on Feb. 11, 2019, did a trash pull at Bentaas' home. They seized cigarettes and cigarette butts, cotton swabs, Kleenex with hair, hair with yellow cardboard, ear plugs, water bottles, glass bottles, beer cans, beer bottles and dental floss.

Theresa Rose Bentaas, 57, was arrested Friday morning after police determined through DNA that she was the mother of Baby Andrew. Argus Leader

Police obtained a search warrant for buccal swabs from Theresa and Dirk Bentaas.

Female DNAfound on a water bottle, Coors Light can and cigarette butts from the trash pull "could not be excluded as being from the biological mother of Baby (Andrew) Doe." DNA from two different men was also linked to Baby Andrew.

Police interviewed Dirk and Theresa Bentaas later in February 2019. Police did a cheek swab on both. In that interview, Theresa Bentaas said she was "young and stupid" and admitted to being pregnant in 1980-1981.

Test results from the cheek swabs showed "extremely strong evidence" to support the biological relationship between Theresa Bentaas, Dirk Bentaas and Baby Andrew.

Theresa Bentaas was arrested in March 2019. She posted bond and has been out of custody sinceMay 2019. Bond conditions included that she be required to wear a GPS ankle monitor, hand over her passport, check in at her attorney's office once a week and live with a family member.

Bentaas' trial is scheduled for April. Her next court appearance is scheduled in March.

Email reporter Danielle Ferguson at dbferguson@argusleader.com, or follow on Twitter at @DaniFergs.

Read or Share this story: https://www.argusleader.com/story/news/crime/2020/02/14/attorneys-theresa-bentaas-look-suppress-dna-evidence-baby-andrew-case/4765639002/

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Attorneys for Theresa Bentaas look to suppress DNA evidence in Baby Andrew case - Argus Leader

"The Framers ... conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men." -- Justice Louis Brandeis (1856-1941)

While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.

The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizedthe federal government to capture without a warrant all records of all people in America held by third parties.

Do we really want the federal government to spy without warrants? How can Congress, which has sworn to preserve, protect and defend the Constitution, legislate such a blatant violation of it? Here is the backstory.

HOUSE REPUBLICANS BOYCOTT INTEL HEARING, ACCUSE SCHIFF OF IGNORING FISA ABUSE

After the Constitution was ratified in 1789, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants and to require judicially authorized search warrants issued under narrow circumstances. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that colonists-turned-Americans had for general warrants.

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A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British soldier or intelligence agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

Hence Madison's language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized.

After 9/11, in the collective spirit of fear, timidity and subservience to the presidency, and in utter disregard for its members' oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

Over the years, the definition of financial institution has been radically expanded by both legislation and presidential executive orders so as to include nearly every conceivable entity that has any records about any person in America -- from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

At the same time that the Patriot Act was being expanded, the National Security Agency -- America's 60,000-person-strong domestic spy apparatus -- was not even pretending to follow legislation.

We know from Edward Snowdens revelations -- which have never been disputed by the government -- that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber optic cable. That includes every email, text message and piece of data -- even what was deleted. This warrantless mass surveillance continues today unabated.

Also unabated and equally unlawful and unconstitutional is the governments use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or, under Section 215, may captureall the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They rightly fear -- they know -- that all of this violates the Fourth Amendment.

If their nefarious behavior, which we know they have used on the president of the United States and on the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

They have made up this argument out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

Has the government lost sight of our birthright? It is life, liberty and the pursuit of happiness -- not to mention getting into heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

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Brandeis' language about being let alone was written in 1928, in a dissent to a Supreme Court opinion that failed to recognize the right to privacy. Today, his dissent is the law of the land, but the feds ignore it.He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of intimate aspirations, none of which are the government's business.

Why do we permit the government to assault our most basic freedoms, under the law or under the table?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

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Judge Andrew Napolitano: Government is spying on us without warrants, in violation of Constitution - Fox News

Join the Star City Thinkers discussions.

We the people have rights given by the Constitution and laws of the land. Owners of producing property, including the providers of high tech products, have rights given by the Constitution and laws of the land. BUT now as in the past laws need to be changed and interpretations of the Constitution may need to change OR the Constitution, itself, may need to be changed.

We will complete a short review of Net Neutrality whereas, there is a conflict between the property rights of original providers and those businesses who wish to hitch a ride on the train; as well as, issues of what is best for the consumers. See ProCon.org link below.

We will then look at 4th amendment issues where there is conflict with privacy issues. See Heritage Foundation link below.

KEY REVIEW MATERIAL:

Should Net Neutrality Be Restored? - Top 3 Pros and Cons

https://www.procon.org/headline.php?headlineID=005390

The Fourth Amendment and New Technologies

https://www.heritage.org/report/the-fourth-amendment-and-new-technologies

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Property, Privacy and New Technology - Roanoker