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2001-2011: A decade of civil liberties' erosion in America -- Part Two

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FBI agents encouraged to search your trash, public databases just to sniff around for crime 

The Federal Bureau of Investigation plans to issue new rules for its agents saying, essentially, that they can and should dig through our trash and search databases if people who aren't suspects but who are simply being assessed or looked at. The new FBI trash-digging policy will be a part of the agency's updated Domestic Investigations and Operations Guide, a source tells the New York Times. The changes apply not to criminal investigations but, apparently, to agents' ability simply to sniff around "proactively," according to the Times. The paper states that some agents wanted the trash-sifting powers so they could use evidence found among refuse to pressure people to snitch on others.

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents' power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing. "Claiming additional authorities to investigate people only further raises the potential for abuse," Mr. German said, pointing to complaints about the bureau's surveillance of domestic political advocacy groups and mosques and to an inspector general's findings in 2007 that the F.B.I. had frequently misused "national security letters," which allow agents to obtain information like phone records without a court order. [5]

Some of the most notable changes apply to the lowest category of investigations, called an "assessment." The category, created in December 2008, allows agents to look into people and organizations "proactively" and without firm evidence for suspecting criminal or terrorist activity. Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.   Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. [6]

The new rules will also relax a restriction on administering lie-detector tests and searching people's trash. Under current rules, agents cannot use such techniques until they open a "preliminary investigation," which -- unlike an assessment -- requires a factual basis for suspecting someone of wrongdoing. But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant. Agents have asked for that power in part because they want the ability to use information found in a subject's trash to put pressure on that person to assist the government in the investigation of others.  [7]

Freedom of Speech Curbs [8]

As Geoffrey R. Stone, a professor of law at the University of Chicago and the chairman of the board of the American Constitution Society, wrote in the New York Times on January 3, 2011:

The so-called Shield bill, now introduced in both houses of Congress in response to the WikiLeaks disclosures, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, "in any manner prejudicial to the safety or interest of the United States," any classified information "concerning the human intelligence activities of the United States."

Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act should be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation.

And finally, a central principle of the First Amendment is that the suppression of free speech must be the government's last rather than its first resort in addressing a problem. The most obvious way for the government to prevent the danger posed by the circulation of classified material is by ensuring that information that must be kept secret is not leaked in the first place.

If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality at the source, then we risk too great a sacrifice of secrecy. The answer is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.  

Obama reverted to Bush detention policy in virtually every way

After week one in the White House, Obama reverted to Bush detention policy in virtually every way. One of the first major disgraces concerned detainees at Bagram, the prison camp in Afghanistan, where Bush began shipping more detainees after Guantanamo was no longer his lawless playground, and where Obama has increased funding and the prison population. Four men sued for habeas relief. Justice John Bates, a federal judge appointed by Bush found that habeas should apply, in limited capacity, to Bagram, given that the Supreme Court ruled that it extended to Guantanamo. Obama's administration appealed this ruling, using Bushian reasoning down the line. [9]

Bagram is even worse than Guantanamo, where at least the CRST process existed, and the military commissions have freed hundreds of people. Bagram is simply a dungeon beyond the law, and Obama has basked in it with only a little criticism from the left. As for Guantanamo, Obama had promised to close it by January 2010. It is not closed and current plans indicate it will be closed, perhaps around the end of Obama's first term. There is talk of bringing Gitmo to the mid-west, which raises other concerns of setting the precedent that you don't need to go to Cuba to find an American legal black hole. A cry for justice in the spirit of "Yes We Can" has morphed into a totalitarian-style five-year plan. And the abuses there have only gotten worse. [10]

Raymond Azar, Obama's first rendition victim, was not even an alleged terrorist or belligerent. He was accused of a white-collar crime that shouldn't even be a crime -- failing to come forward regarding very minor corruption in defense contracting. But for an alleged white-collar non-crime, this Lebanese man working at Sima International was arrested in Afghanistan and, according to his testimony, taken to Bagram, deprived of sleep, stripped naked, subjected to extreme temperatures and stress positions, deprived of food, confined in a metal box and railroaded into a plea bargain lest he never see his family again. [11]

References

[1] How Easy Is It for Peaceful People to Violate the Patriot Act? By Joshua Holland  

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Author and journalist. Author of Islamic Pakistan: Illusions & Reality; Islam in the Post-Cold War Era; Islam & Modernism; Islam & Muslims in the Post-9/11 America. Currently working as free lance journalist. Executive Editor of American (more...)
 

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This ongoing series takes a good look at what has ... by Michael Germain on Friday, Aug 26, 2011 at 8:42:19 AM