Hopefully, civil liberties will be in vogue again

President Obama has begun the lengthy process of forcibly re-opening the government after eight years of secrecy as policy. For example, for the last eight years, it has been official policy to grant Freedom of Information Act requests only after exhausting all legal methods of fighting them. This is not how a democracy is supposed to work.

Nevertheless, so-called liberals still think that secrecy and unrestrained executive power are good things. My favorite blogger in the world, Glenn Greenwald, is routinely derided for his devotion to civil liberties issues. Today, he writes about the "Washington establishment" reaction to Obama's executive orders. Government power, it appears, is -- like prices in relation to aggregate supply -- "sticky" in the upward direction. But instead of price on the vertical axis, it's secrecy, and there are those in Washington (Greenwald cites Washington Post's Fred Hiatt) who are unwilling or unable to take things back to the way they're supposed to be: i.e., transparency and accountability. They are even loathe to permit real prosecutions of "terrorists" at Guantánamo Bay, preferring instead the farce trials of the Military Commissions Act, which permit evidence obtained through hearsay and coercion.

Sure, protecting our country is important. But so is protecting our respect for the law. Have we become so used to unquestioned executive power, with "national security" offered as the boilerplate excuse, that we don't remember a time when we questioned our country's policies? Implicit in the criticism of Obama's orders is the assumption that all 200-some people still in Guantánamo really are terrorists. Well, that was the whole point of these commissions: to determine whether or not these people actually are terrorists. The Bush administration unilaterally asserted that they were, but the Supreme Court rebuked it, saying that the president does not have the power to state unequivocally that this person or that person is an "enemy combatant" and lock them up forever.

It will take some getting used to, but we must get back into the mindset of questioning our leaders when they say things. It does not follow that, because the government says something is true, that such a thing is true. That being said, Obama's first official acts point to a wonderful turnaround in how our government thinks and acts. Now, the default position of the government will be toward openness, not secrecy. Freedom of Information Act requests will be honored in good faith, with requests denied only for legitimate national security reasons and not to hide government activities from the American people.

George W. Bush paid a lot of lip service to "freedom," but when it came to putting it into practice, there was a lot of talk and a lot of swagger, but his intentions were exactly the opposite of what he said he wanted. His government was opaque to an unprecedented degree. That's not freedom. When the executive says, "Don't worry, everything is on the up-and-up. Just trust me," that's tyranny. The president is not in charge. We the People are in charge. He is our delegate and it is unconscionable for us to be completely out of the loop regarding the actions of our representatives. Obama has begun on the right foot, but opening the shades and letting the sun shine in.

What rights do illegal aliens have?

In short: all of them. This story from Brian Cuban's Weblog details the city of Farmer's Branch, Texas, which passed an ordinance requiring potential renters or home-buyers to provide proof of citizenship before they can buy or rent. As Cuban mentions, the courts have dealt with this before, throwing out municipal ordinances limiting access to city services to legal residents and citizens because only the federal government has the authority to make laws pertaining to a person's immigration status.

But what constitutional rights do illegal immigrants have? As it turns out, they have all of them. Wong Wing v. U.S., 163 U.S. 228 (1896) and Plyler v. Doe, 457 U.S. 202 (1982) both affirmed that anyone located within the United States was subject to -- and protected by -- its laws. The key to both cases is the Fourteenth Amendment, which holds that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The use of the word person -- not "citizen" -- extends equal protection of the law to anyone located in any state.

The use of the word "person" is not a mistake and is not a semantic issue. In drafting the Fourteenth Amendment, the congressional committee was very clear about their language:

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction.

Both the Constitution and the Supreme Court are quite clear: regardless of a person's immigration status, if that person is located within the jurisdiction of the United States, then he has all the protections afforded to citizens, legal residents, foreign tourists, or anyone else located within the jurisdiction of the United States.

Fourth Amendment protections? Not at the border!

From Wired's Threat Level blog, it turns out that you have no constitutional rights at U.S. border checkpoints.

The Ninth Circuit Court of Appeals, right here in sunny San Francisco, ruled that border agents do not need a warrant -- or, indeed, any reason at all -- to search passengers' persons, belongings, and the contents of their computers. The case, U.S. v. Arnold, began when petitioner Michael Arnold turned his computer on at a border checkpoint. He was asked to do so by a border agent who wanted to make sure the computer was working. (This is fairly common; security officials ask you to turn the computer on to make sure it really is a computer and not a case for a bomb.) After the computer booted, border agents looked through folders on his desktop and found pornography. On further inspection, they found "numerous images depicting what they believed to be child pornography." Arnold was charged with three counts of child pornography. He filed a motion to suppress the evidence from his laptop, based on the fact that border agents searched without a warrant or probable cause. A district court granted the motion, saying that the border agents did need "reasonable suspicion" to search the contents of the computer, which the court said they didn't have.

The Ninth Circuit began by stating that all searches at any U.S. border are a priori "reasonable" since the United States has "inherent authority to protect, and a paramount interest in protecting, its territorial integrity." It cited no fewer than four cases to back up this point. Next, the court affirmed that border agents have the authority to search any container, regardless of what type of container it is, including "(1) the contents of a traveler’s briefcase and luggage; (2) a traveler’s 'purse, wallet, or pockets'; (3) papers found in containers such as pockets; and (4) pictures, films and other graphic materials" [citations removed]. Any kind of property can also be searched at the border, regardless of whether it qualifies as a container. The only restriction on automatic searches is the "alimentary canal," which is the entire gastrointestinal tract.

Arnold's argument lies in his assertion that the contents of a laptop are an "extension of human memory" that are deserving of the same level of "dignity" as a human being himself. The Ninth Circuit rejected this assertion outright, writing that a laptop is definitely not a person and therefore not subject to the same tests as "intrusive" searching of a human being.

And there you have it. Until the Supreme Court takes this case -- which it probably won't -- the government has limitless authority to search your laptop at the border. However, this authority does not extend to situations in which the contents of the laptop are encrypted. Curiously, while the government may remove your laptop's hard drive and rifle through it at their leisure, if they are unable to read it due to encryption, they cannot force you to give them the key to decrypt it. This page provides a guide for "customs-proofing" your laptop.

Note that this case applies only to U.S. borders. Since the "reasonable suspicion" component of the case hinges on protecting the United States' borders, entirely domestic flights should not be subject to the same warrantless searches. (Then again, if you encounter a TSA official who doesn't know what the law is, that may not stop them.)

Mukasey: Everything is linked to terrorism!

On the same day he suggested that it was our lack of warrantless wiretapping that helped the September 11 attacks happen, Attorney General Michael Mukasey says that intellectual property piracy aids terrorism. Yes, when you download that Britney Spears track from Kazaa, you're helping al-Qaeda. Intellectual property scholar and terrorist commerce expert Michael Mukasey explains: "Criminal syndicates, and in some cases even terrorist groups, view IP crime as a lucrative business and see it as a low-risk way to fund other activities. [...] A primary goal of our IP enforcement mission is to show these criminals that they're wrong."

Yes, software piracy should be a major goal of IP enforcement. Ignore for a moment the money laundering and the production of nearly-perfect counterfeit U.S. money by the governments of Russia and China. A screener copy of Old School is what's at stake, here.

Also, see Glenn Greenwald's analysis of Mukasey's crocodile tears regarding warrantless wiretapping. Long story short: Mukasey is lying, and he knows it. He was a federal judge, he knows how FISA works, and he's going in front of the American people and lying to them about how FISA works so that the Bush administration won't be held liable for breaking the law. Why doesn't Greenwald have a medal?

Barney Frank is awesome

On this week's Real Time with Bill Maher, guest panelist Rep. Barney Frank (D-NY) said that he was working on legislation that would de-criminalize the possession of small amounts of marijuana. Marijuana is illegal under the Controlled Substances Act. Even though ten states permit the use of medical marijuana, the use of marijuana is still illegal under federal law, which trumps state laws.

One of Frank's stated reasons for writing this legislation is to make room for "the real criminals." According to the Bureau of Justice Statistics, 93,751 of the 190,844 inmates in federal prison (49%) are incarcerated for drug offenses. The next-biggest group of offenses, weapons offenses, doesn't even come close: 24,298, or 12.7%. Either there are a lot of criminals out there, or drug use is so ubiquitous that it shouldn't be a crime.

California's prison reform bill

The Drug Policy Alliance has authored a bill that will be sent to the California General Assembly. The Nonviolent Offender Rehabilitation Act will reduce the penalties for non-violent drug offenses in the state of California. DPA's press release lists the following benefits of such a bill:

• The bill would include provisions to qualify new categories of non-violent offenders for Proposition 36, the California law that allows drug offenders to choose drug treatment programs instead of prison.


• Possession of small amounts of marijuana would be less of an offense than a misdemeanor.


• The bill would expand access to rehabilitation programs for people already in prison.

If it wanted, the board in charge of prison sentencing for the state of California could choose to make the provisions retroactive, releasing thousands of non-violent drug offenders from prison. This is a good thing: non-violent drug possession, in which the only crime was possession of a drug, is less severe a crime than, say, murder, rape, robbery, or any other host of crimes in which the perpetrator and the victim are different people. We put people in prison to remove them from society, since they are likely to do harm to others out on the street. People convicted of non-violent drug offenses did no harm to anyone but the state's laws; there is no reason that they need to be incarcerated in state prison, where the space could be more effectively used for holding people who have injured other people.

Welcome aboard

My blog at SEDHE doesn't get a lot of readers. I attribute this to a lack of networking. The blog there is also pregnant with civil liberties issues. I thought to myself, "Why don't I just devote an entire blog to civil liberties?" To that end, with Blogger's convenience and networking ability, I founded this blog, which will be devoted exclusively to issues of constitutional law, with a focus on civil liberties.

My qualifications are thus: I read the law religiously. That's it. I'm just a layperson, an armchair legal analyst. I watch, I read, I comment. And I've learned a lot about the law. Maybe not that much about, say, civil procedure, but enough about First Amendment jurisprudence to make my eyeballs bleed. I hope to discuss issues that are of importance to the nation, and to myself, as I believe there is no more important thing than preserving and upholding the U.S. Constitution, without which the lives of Americans would be very different and probably much more difficult.