Friday, December 27, 2013

As the Police State Continues To Grow In America...

by: Les Carpenter
Rational Nation USA
Purveyor of Truth

William H. Pauley III, a federal judge of the United States District Court for the Southern District of New York has ruled "... that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." This of course means that all phone records essentially become the property of the federal government and can be used for any reason whatsoever Big Brother deems appropriate. It certainly seems America is rapidly approaching the government described in George Orwell's epic novel 1984. Big brother will not be content until it can listen to and see everything its citizens are doing.

Nominated by President William Jefferson Clinton in 1998 to the federal bench Judge Pauley's decision is somewhat befuddling. Especially in light of Judge Richard J. Leon of Federal District Court for the District of Columbia ruling that "... the program most likely violated the Fourth Amendment. As part of that ruling, Judge Leon ordered the government to stop collecting data on two plaintiffs who brought the case against the government." Judge Leon, nominated by President George W. Bush in 2002 clearly understands the dangers to Americans right to privacy and the concept of unlawful search and seizure. Essentially data mining of private phone records by the NSA of United States Citizens is an unconstitutional act and Jfge Leon has it exactly right.

What befuddles me even more is that the current "President of the People", Barrack Hussein Obama, apparently is solidly behind the decision handed down by Judge Pauley. An Obama Justice Department spokesman had this to say following Judge Pauley's decision, " “We are pleased the court found the N.S.A.'s bulk telephony metadata collection program to be lawful.” The spokesman refused further comment. Welcome Big Bother Surveillance State of America.

The ACLU, of whom former Republican President George Hebert Walker Bush as a proud card carrying member of, intends to appeal the decision. In a statement following the decision Jameel Jaffer, the A.C.L.U. deputy legal director made the following statement, "... We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections.” This is most certainly one issue that ALL Americans should be highly concerned with.

For the full story please see The New York Times article below the fold.

Via: Memeorandum


  1. I find myself scratching my head over this post; not merely over the post but how two seemingly intelligent beings can read the same link and walk away with opposite impressions.

    First, here is Judge Leon saying: “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.

    And here is Judge Pauley recalling this anecdote: “In the months before Sept. 11 … the N.S.A. intercepted seven calls made to a Qaeda safe house in Yemen from the United States. They were from Khalid al-Mihdhar, who was living in San Diego and would become one of the hijackers. But the security agency “could not capture al-Mihdhar’s telephone number,” the judge wrote, and “N.S.A. analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States … Telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” Judge Pauley wrote.

    So whom shall we trust? Some folks have a reflexive distrust of government; others do not. Shall we trust a FISA Court charged with the responsibility of balancing public safety versus 4th Amendment rights, or a corporation whose primary mission and purpose is earn a profit for its shareholders (but not necessarily protect the public)?

    I lost a cousin in the WTC towers on 9/11. Her name is Ruth Lapin. You will find her name among the 3,000 casualties inscribed on the WTC memorial in New York City. I loved my cousin and will forever miss her.

    Neither the experience of 9/11 nor the NSA has turned us into a police state, although some of you hold a knee-jerk distrust of government that I find disturbing: Paranoia over alleged abuses that have not occurred, paranoia over hypothetical abuses that FISA courts are designed to prevent, and paranoia for the sake of paranoia … a favorite pastime of insensitive bloggers who have never lost a family member.

    I lost my cousin. For me, there is nothing hypothetical about the prerequisites of government to protect public safety. Nor do I appreciate the gratuitous name-calling (i.e. 'Big Brother') that turns every discussion into partisan mudslinging.

    1. Yes, I have retained a healthy distrust for the power that is inherently present in government(s). I will continue to do so.

      I do regret your finding this post to be mudslinging as that was not my intention. I did intend for my voice to be heard and my views known. Something I hope is not lost to future generations. But, that will I suppose be their choice.

      In the struggle to balance liberty and security I believe we must err on the side of liberty. Lest we become a Nazi or Soviet style authoritarian police state.

    2. I understand for you (O)CT(O)PUS this is personal in perhaps ways I do not fully understand. I do mourn the loss of your cousin as well as the other 2,999 + souls who were lost on 9/11/01.

      Yes, the government has an obligation to public safety for its citizens. And, law abiding citizens have a right to expect the government to protect their right to privacy. A tough dual task. I have a basic and IMO a healthy concern government ultimately is corruoted by the power it wields. To this end this post was written.

      Wishing you and yours a Happy and prosperpos New Year my friend.

    3. PS: The term "Big Brother" could be respaced by "well intentioned government protection of its citizens run amuck" I .suppose but I'm not at all sure that would do the trick either.

    4. Welcome Big Bother Surveillance State of America.

      No, you still don’t get the gist of my above comment. How has the NSA metadata-gathering program turned America into a police state?

      Have gendarmes beaten down your door lately? Confiscated your property? Taken away your weapons (assuming you have a gun)? Has an FBI agent interviewed you for criticizing the government or for bashing the President? Have your tax returns been audited for posting seditious comments?

      I recall an American President who did these things: Who ordered the break-in of DNC party headquarters and ordered IRS audits of his infamous “enemies list.” Yet, I read on far right-wing blogs how Richard Nixon was “unfairly” and “maliciously” treated by Commie-Socialist-Leftists – as recently as last month – while attributing the End Time to the current President who did none of these things.

      You praise GHW Bush as a card-carrying member of the ACLU while conveniently ignoring the fact that it was the same ACLU raising alarm over the Patriot Act signed into law by his son, GWB, or the Guantanamo Bay Detention Camp started by GWB, or “enhanced interrogation” (aka torture) practiced during the presidency of GWB, and finally the NSA data mining program started under GWB. You see, everything is IOKIYAR or OK GHWB or OK GWB, but when you refer to the current President, you make sure everyone reads his middle name, “Hussein” (badda bing badda boom) because this is the gratuitously partisan thing to do (code words followed by the customary sneer and jeer), whether or not it makes any real sense or serves any real purpose.

      No, you still don’t get it. The inconsistencies, the contradictions, the hypocrisy, and ultimately the complete lack of impartiality or credibility embodied in this post!

      Nope. This is just knee-jerk partisanship with no attempt to get inside the vexing legal issues surrounding this story.

    5. Perhaps this story on CNN tonight casts a new light on the latest judicial decision, al Qaeda on the rebound:

      While al Qaeda suffered significant setbacks after Navy SEALs shot and killed Osama bin Laden in Pakistan in 2011, and drone strikes have taken out top terrorists along the Pakistan-Afghanistan border, the terror group and its close allies have rebounded in Yemen, the Sinai region of Egypt, Libya, Iraq, and parts of east and west Africa, among other places.

      Al Qaeda in the Arabian Peninsula, or AQAP, headquartered in Yemen, is particularly concerning.

      CNN has learned of recent intercepts of messages among senior al Qaeda operatives in Yemen, but the messages don't name specific targets. One source told CNN that the chatter suggested "active plotting."

      All told, this may not be the best time to eviscerate the NSA.

    6. I do believe I get the general gist of your comments.

      Answer to your questions... no. Nor do I wish for that to happen. History has ample examples and these things start small and grow.

      Not a fan of the Patriot Act. I should have seen what was coming at the onset. But oops, it is no what it is.

      We have different views and it is unlikely either of us will change our positions. I'll keep an active mind and listen to arguments but right now I don't anything to cause me to alter my views. But who knows?

      Don't have a problem with surveillance of the bad guys, or when their is reasonable suspicion an American may be involved.

      That's pretty much it.

    7. Octo: You lost me on your point about calling the President by his actual name. If there is one. It is his actual, correct name, and as such there is no problem with it. People should call him this, not Obammy, Obummer, and the other actual insults.

  2. The real problem here is our poorly defined right of privacy. The constitutional right to privacy is actually just implied. (Personally, I wish the church and the press would go after these programs. Their expressed rights could be violated here.) But since 1979 it's been understood that the very very old legal context that involves communications through third parties applies to the phone companies, and hence across all commercial communication. (Ironically, if we had public communication, these programs would probably be illegal.)

    So, there ya' have it.

    If you want a change, you have to demand congress makes laws in regard to this. Otherwise, and meanwhile, we seriously need a Right To Privacy constitutional amendment.


    1. Funny how different scholarly individuals will interpret the same wording in a variety of ways. I'm guessing the founders and framers of our Constitution knew that would happen.

      It would be interesting if we had the ability and capability to go back in time and chat with them on this issue to hear what they would say.

      But hear we are in what soon will be 2014 and the modern day Supremes in their Solemn Black Robes will once again have their say.

    2. Time alters the exact meaning of words that the phrasing of ideas. It is possible that the Founding Fathers thought they were being very clear in their words. Perhaps it is our understanding that is cloudy.

    3. Regarding a 'police state' vis a vis the Founders. IMO, the Alien & Sedition Laws were more along that line than data mining. Regarding going back in time, my guess, Jefferson would not stop asking questions about particle physics, space travel and that wonder of wonders-the smart phone, long enough to consider constitutional interpetations.

    4. Les, most constitutional scholars would completely agree with what I wrote above (including in the parentheses). I don't know what wording in the Constitution even applies to this, aside from the government's responsibility to ensure our security. What words are you considering?


    5. Well said, Jersey. Or an amendment.

      A good start...

    6. Jerry, the Founding Fathers were being very clear, but yes you are correct, there are different interpretations by people of different mindsets. And the divide between them continues to grow. It's close to a chasm at present.

    7. You might be right BB Idaho, you just might be right. But I think Mr. Jefferson probably had a basic distrust of bureaucrats.

  3. This may surprise RN, but I might disagree with the characterization of this post as "partisan mudslinging". Another individual who comments here considers me highly partisan (referring to me as a "partisan stooge"), but I'm with those who respect the protections guaranteed by the 4th amendment and believe the NSA data mining is a violation of them. I'm with, for example, Senator Bernie Sanders, who attempted to reign in the NSA with the Restore Our Privacy Act. This legislation would have "put an end to open-ended court orders that have resulted in wholesale data mining by the NSA and FBI. Instead, the government would be required to provide reasonable suspicion to justify searches for each record or document that it wants to examine".

    I'm also in agreement with Rep. Alan Grayson, who introduced the Mind Your Own Business Act. Rep. Grayson's amendment would also put an end to the NSA data mining. So, "partisan mudslinging"? Only if you think it partisan to disagree with the administration. But there are those on the Left (including myself) who think the President is wrong on this issue.

    BTW, I said "might disagree" earlier because it seems RN was trying to paint this issue as Republicans against Democrats. He pointed out that the Clinton-appointed judge got it wrong, while the bush-appointed judge got it right. And (although it has no relevance as far as I can see), RN points out that GHWB was a "proud card carrying member of the ACLU". But, has he made any kind of statement? I am not aware of any. I do know that his son said "I put the program in place to protect the country, and one of the certainties is civil liberties were guaranteed". So here we have an ex-president bush who supports the data mining (apparently).

    The mudslinging here may be the suggestion (if RN is making that suggestion) that Republicans uniformly stand for what is right (protecting our 4th amendment rights) while Democrats uniformly stand with the president (and believe the NSA data mining is just peachy). As I illustrated with my examples of Senator Sanders and Rep. Grayson, that isn't the case.

    BTW the word "privacy" isn't in the constitution because "in 1776 [privacy] was a code word for toilet functions. A person would say, 'I need a moment of privacy' as a way of excusing themselves to go use the 'privy' or outhouse". Instead the framers used the word "security". It means the same thing as the word "privacy" does today. So, no, it isn't implied. Security/privacy most certainly IS in the Constitution.

    1. But not when you communicate through a third party.


    2. Jersey, that is the argument of those who support the "police state", but I disagree. You are protected when you send communications through the USPS. The penalties for opening mail that isn't yours are quite stiff. 4th amendment protections should apply to other intermediaries as well, IMO. Just because someone else handles your papers and effects does not mean they aren't yours.


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