The Clapper Tell ... The Boy Can't Lie Good

With the flourishing of Texas Hold Em Poker, and the propagation of tournaments being televised, we've all had the chance to learn a bit about the game, the strategy and the tactics.  We all know, now, about the importance of learning the "tell" of each player at the table.

The "tell" is that involuntary action or posturing -- body language -- that indicates the state of mind of the player.

I watched Director Clapper's testimony before the Senate.

For your convenience, I have circled the gesticulation associated with the only known LIE told by Clapper on that occasion.

So, if you find yourself in a conversation with Director Clapper, and he begins furiously scratching his head, check for mosquitoes, or watch out for the flying lies!

An Apology for Tyranny: How One Evangelical Conservative Legal Group Contributed to Liberty's Loss

As I mentioned the other day, there is responsibility to be assigned for the massive constitutional violations of privacy and liberty uncloaked this week, the logging of billions and billions of phone records, the PRISM program and related adventures in domestic surveillance.  And there is responsibility that flows back to Bush/Ashcroft and the Patriot Act.  And there is responsibility that flows back to the leadership of conservative and evangelical Christian groups that should have opposed the surrender, in 2001, of liberty in the name of obtaining security.

But now I want to back up my assertion by directing you to the October 2001 "Open Letter" of Jay Sekulow, Chief Counsel of the ACLJ.  There, Sekulow baptizes the maiden voyage of this government intrusion, giving my former employer's blessing to what became the Patriot Act.

In the "Open Letter," Sekulow stakes the claim that the legislation is constitutional, and asserts that the conclusion was supported by Senior Staff.

This was not true at the time that it was promoted to the conservative and evangelical community in October 2001.  "Senior Staff," of which I was one, raised serious questions and objections to the legislative proposal at the time that it was discussed with us.  Truth be told, the ACLJ's support for the act was a fait accompli by the time that consultation was had.

It was unsound -- then -- to support the arrogation of power by the Executive Branch, and to support the derogation of individual liberties.

To my own shame, I kept silence with the notion of keeping my job.  Even when the deleterious impact was reflected in greater and greater encroachments on the exercise of well-established constitutional rights (such as through the creation and maintenance of speech free zones in the name of providing security to "protected persons"), and I should have criticized the security crazed and liberty loathing sense of the Bush administration's policies, I kept silent within the ACLJ, while strenuously litigating for the rights of clients, such as Reverend Patrick Mahoney, to conduct prayer vigils and demonstrations in close proximity to events involving the President, Supreme Court justices, etc.

Now those policies have grown up under the nurture and care of the Kenyan, but the seeds should never have been planted by Bush and Ashcroft, nor watered with the praise of the ACLJ.

Watertown vs. Warrants

In the recent affair in Watertown, Massachusetts, police undertook its community wide, door to door, search for a suspect related to the Boston Marathon bombing and the murder of an MIT security officer.  Now, with images and stories appearing on the internet, we learn that officers brandished weapons at residents, ordered individuals out of their homes, ordered individuals into their homes, and ordered individuals away from public places.  All the while, officers went from door to door, conducting their search without warrants.  The question naturally comes to mind, were those officers treading on the Fourth Amendment rights of occupants of properties throughout the community?

The protection of our persons, our homes, our papers and our effects, from being rifled by government agents, is a right of personal integrity inextricably bound up in the natural rights we receive from the Creator.

In England, from whom we received the fundamental structures of our legal system, this security of the person as a natural right received its most recognizable acknowledgment in the Magna Carta, which, while it did not set out a requirement of warrants on probable cause before searches, guaranteed to those accused of crimes that they receive due process.  Here in America, Jefferson indicted King George III and the Parliament because, by a series of enactments and impositions, they had trenched heavily upon the English Colonists’ rights to “life, liberty and the pursuit of happiness.”  Liberty, of course, embodies the right to control one’s body, one’s possessions, and one’s home.

Given the excesses of the Crown and Parliament, and the Colonists’ recognition of the natural rights of men, what followed was unsurprising.  In setting up their independent governments, the majority of the newly independent colonies took specific steps to guarantee their Government’s would understand and be limited in the power to tread upon their natural rights.  In Virginia, Maryland, Pennsylvania, North Carolina, Vermont, and Massachusetts each expressly enacted warrant requirements in their Constitutions or Declarations of Rights:

“10. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.”  Virginia Declaration of Rights, sec. 10.

“That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants--to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special--are illegal, and ought not to be granted.”  Maryland Constitution of 1776, Declaration of Rights, art. 23

“X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.”  Pennsylvania Constitution, 1776

“XI. That general warrants -- whereby an officer or messenger may he commanded to search suspected places, without evidence of the fact conmlittecl, or to seize any person or persons, not named, whose offences are not particularly described, and supported by evidence -- are dangerous to liberty, and ought not to be granted.”  North Carolina Constitution, 1776

“XI. That the people have a right to hold themselves, their houses, papers and possessions free from search or seizure; and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.”  Vermont Constitution, 1777

“XIV. Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”  Massachusetts Constitution of 1780, PT. 1, ART. 14

Common features appear in these early pillars of individual autonomy and liberty.

First, these provisions recognized the right of individuals to personal security, and the danger to liberty that disregard of that right presents. 

Second, these provisions recognized that, to insure individual security, the power of the Government to intrude into one’s papers or property, or to seize one’s person, required a basis more significant that a general apprehension or fear.  Instead, these provisions made plain that the power of government to search in suspected places or seize persons required that strict procedural requisites be observed. Those procedural requisites, not mere niceties, meant that warrants would only be issued on sworn evidence; that such sworn evidence identified specific persons to be seized, specific evidence to be seized, and specific places to be searched.  General warrants were prohibited.

When the First Congress propounded the Bill of Rights to the States, it expressly agreed with the view of the States that an express limitation on the power to issue warrants was required:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  US Const. amend. IV.

Now, the citizens of the aforementioned States were protected from State violations of the security of the persons, papers, and property by State Constitutional provisions, and from federal violations by the Fourth Amendment to the Constitution.

Even with such provisions written, as it were, in stone, are individuals secure from all warrantless searches and seizures.  That question is, of course, the one that arises out of Watertown.  As it turns out, the rule requiring a warrant, specific in terms, based on oath or affirmation, is not absolute.  Courts have found that, in a limited set of precise circumstances, the requirement of a warrant will give place to other pressing or important interests.  These exceptions include exigent circumstances, stop and frisk, search incident to arrest, custodial search, plain view, vehicle, border, open field, abandoned property, consent, administrative, probation and protective sweep.  Some of these exceptions are more obvious and self-explanatory, others not so much.

Consent, as an exception, simply involves permission being given by one who has control of the property to be searched. Similarly, probation-related searches are, in a sense, related to consent searches.  As a condition of being released from custody, a person subject to probation agrees to searches without warrants.

More disconcerting and concerning are such exceptions as the stop and frisk and "open fields" exceptions.  "Stop and frisk," also called a Terry Stop (after the case describing it) allows an officer to pat down a person encountered on the streets or other public places where probable cause does not yet exist to believe the person has committed a crime.  The “open fields” exception excuses the snooping eye of government from a warrant requirement when it explores those privately owned properties distant from dwelling places.

In Watertown, it is not obvious that any one of the exceptions was applicable.  The closest might have been the “hot pursuit” exception, except there is no evidence that police were hotly pursuing Suspect No. 2.  In fact, given the door to door nature of the police search, it is unlikely that the police were close on the trail of a fleeing suspect, such as is typical of the cases in which the hot pursuit exception is found to excuse the usual warrant requirements.

Of course, it may ultimately be a matter that courts are called on to address.  Individuals that were subjected to intrusion may decide to press the case by seeking damage awards on the strength of their claims that the police search violated their federal civil rights.  That remains to be seen.