May 25, 2015

Get cops off the streets (unless serving a warrant or responding to a 911 call)

police-role1BUFFALO, December 5, 2014 – Protests erupted in New York City yesterday following a second grand jury decision not to indict a white cop who killed an unarmed black suspect. Unfortunately, all of the attention is focused on the racial aspect of the two tragedies and not on a question that really needs to be asked.

Do we really need armed government agents patrolling the streets, looking for people to cite or arrest for mostly victimless crimes?

Few people propose to abolish police forces entirely, although some small communities have done so. Most believe that police forces are necessary to protect life and property. Whether that’s true or not, many honest police officers will tell you they spend very little of their time actually doing so.

Read the rest of the article…

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Earth to Bill Maher: Edward Snowden isn’t the crazy one

GREENWALD-largeTAMPA, January 21, 2014 – Bill Maher interviewed journalist Glenn Greenwald following President Obama’s speech on Friday in which the president discussed his proposals to reform the NSA. Greenwald is the journalist who first reported on the information released by Edward Snowden on the government’s domestic surveillance activities.

While Maher was respectful of Greenwald and, to some extent, Snowden, he went out of his way to smear some of Snowden’s claims about the government’s activities as “completely nuts.” He also found it necessary to take a shot at Ron Paul, who wasn’t even involved in the issue at hand.

For Maher and too many likeminded people, anyone who doesn’t view the government as a benevolent force for good is a tinfoil-hat-wearing kook who believes all civilian life is the target of a massive conspiracy involving the government, secret societies, aliens, etc. Thus Maher’s retort, “Everyone in the government isn’t out to get you.”

That’s what’s known as “framing the debate.” You’re either with Bill Maher and President Obama or you’re with the kooks. You may also be somewhere in the middle, where Maher apparently places Snowden. It completely ignores the many other perspectives one might have, including that of most libertarians.

Libertarians don’t believe that the people who work for the government are evil. It’s the institution of government itself, a monopoly on the use of force that can martial the resources of the entire nation. That kind of power is dangerous even when used by good people with good intentions.

Read the rest of the article at The Huffington Post…

Obama’s proposed NSA reforms prove he doesn’t understand checks and balances

utah datacenterPresident Obama delivered a speech on Friday outlining his plans to address the widespread outrage over the domestic surveillance activities of the National Security Agency. However well-intentioned, the president’s proposals indicate he just doesn’t get the constitutional notion of delegated powers.

Implicit in the Fourth Amendment is the principle that the government should remain powerless unless and until an individual is reasonably suspected of having committed a crime. It isn’t even allowed to search one’s person or papers (viz. phone records, emails) to collect the proof it needs until it persuades a judge that it has probable cause.

The only reason the Fourth Amendment offers any protection is it prescribes an adversarial process. The judicial branch is predisposed to refuse to issue a warrant until the executive branch provides sufficient evidence of probable cause.

Read the rest of the article at the Daily Caller…

Obama’s NSA speech proves government can’t prevent terrorism in a free society

obama911TAMPA, January 18, 2014 – President Obama outlined his proposed reforms of the NSA’s domestic surveillance activities in a speech on Friday. The speech was at times eloquent and the president’s intentions appear genuine, but his recommendations for reform are inadequate. As long as the government is trying to prevent crime or terrorism in the future, it’s going to trample liberty in the present.

The president stated the crux of the problem during his speech:

“So we demanded [after 9/11] that our intelligence community improve its capabilities and that law enforcement change practices to focus more on preventing attacks before they happen than prosecuting terrorists after an attack.”

Freedom requires that the government not attempt to prevent anything. All powers granted to the government relate to crimes committed in the past.

The Bill of Rights rests upon this assumption. Rooted in what is now called the “libertarian” principle of non-aggression, the Fifth Amendment prohibits the government from using force against an individual until it has proven beyond a reasonable doubt that the individual has committed a crime in the past.

The Fourth Amendment goes even farther, prohibiting the government from even searching an individual or his papers (e.g., phone records, e-mails, etc.) without probable cause that the individual has committed a crime in the past.

The entire Bill of Rights supposes that you are beyond the reach of government until you have actually committed a crime. That logically excludes the possibility of the government preventing anything, because the government must employ force against the innocent to do so.

Read the rest of the article at Communities Digital News…

Why Civil Libertarians Should Oppose Federal Civil Rights Charges in Kelly Thomas Case

r-KELLY-THOMAS-TRIAL-large570On Monday, a jury acquitted Officers Manuel Ramos and Jay Cicinelli of charges related to the death of Kelly Thomas. Immediately afterwards, the FBI field office in Los Angeles announced that it would review the case to determine if federal charges would be brought against the officers.

The verdict was unpopular with civil libertarians, who cited the case as evidence of increasing police brutality, the result of a militarization trend in state and local police departments. They had hoped a guilty verdict would establish some accountability for officers who abuse their power.

They were correct to call attention to the case, but they should oppose federal charges against Ramos and Cicinelli. Affirming the authority of multiple governments to charge defendants with crimes for the same behavior loses the forest for the trees. While a conviction in federal court may feel good in this case, it further empowers the federal government to encroach upon state jurisdiction and weakens due process rights for defendants in general.

Read the rest of the article on The Huffington Post…

We’re all Osama Bin Laden now

TAMPA, June 25, 2013 – Twelve years ago, the U.S. government demanded that the Taliban extradite Osama Bin Laden to stand trial for the 9/11 attacks on New York City and Washington, D.C. The Taliban responded similarly to how they had in the past to the same demand. They asked the U.S. government to obey the principles enshrined in its own Fourth Amendment and produce evidence of Bin Laden’s guilt.

The Bush Administration responded with carpet bombing, followed by an invasion.

Most Americans didn’t lose much sleep over Bin Laden’s rights being violated. He was the world’s most infamous terrorist. Had the U.S. been able to pinpoint his location and take him out with a missile or drone attack, there would have been no pundit debate about the constitutionality of the execution (and no, the constitution doesn’t apply only to U.S. citizens).

First, they came for the terrorists…

Flash forward twelve years and quite a few people are losing sleep. Not only has the government’s disregard for the Fourth Amendment “come home” to apply to every American, but all due process protections have been completely abolished. The government claims the right to search, spy on, arrest and detain you without probable cause or warrant. It even claims the right to kill you without charging you with a crime.

For war hawks, the year is perpetually 1939 and every tin pot dictator is Hitler, even if originally installed and supported by the U.S. government. We have been forced to pay for two completely useless wars over the past twelve years, with the specter of Nazi Germany and another Holocaust thrown in the faces of anyone who objected. Anything other than full commitment constitutes “appeasing a dictator,” the fatal mistake that led to WWII.

Yet, the abridged world history textbook that every neoconservative seems to have read apparently contains nothing else about Nazi Germany. It doesn’t seem to tell them anything about why Hitler was a dictator in the first place, long before the Holocaust got under way.

The truth regarding that question is stranger than fiction.

Five years earlier, Germany had suffered a spectacular terrorist attack. Someone set fire to the German parliament building, the Reichstag. Joseph Goebbels regarded the first report of the attack as “a tall tale” and hung up on the caller. Only upon receiving a second call did he believe the report and inform Hitler. Tragically, the eerie similarity to Bush’s reaction to 9/11 didn’t end there.

The Nazi’s blamed the communists for the fire, calling it “the most monstrous act of terrorism carried out by Bolshevism in Germany.” The next day, President Hindenburg signed the Reichstag Fire Decree (without a vote by the Reichstag), which suspended most civil liberties in Germany. This was followed later by the “Enabling Act,” which granted dictatorial powers to Hitler.

All of this was done to “fight the terrorists.” We’ve heard plenty about how not invading the next Middle East backwater would be tantamount to appeasing Hitler, but we haven’t heard a single pundit comparing what America has done to itself over the past twelve years to what Germany did to herself following the Reichstag Fire.

Am I the only one that finds that a little strange?

Sadly, neither country’s people resisted or even expressed reluctance at the surrender of their freedom. On the contrary, liberty died in both places “with thunderous applause.”

The Nazis started by setting up communists and Jews as enemies of the state. Civil liberties had to be set aside until this terrible “new threat” was defeated. But victory never came. Instead, the list of enemies got wider and wider and the police state became permanent. The Gestapo was empowered to spy on German citizens. “Papers, please” became the new normal. Kangaroo courts convicted “traitors and insurgents” without due process.

So far, the U.S. government has only executed a Muslim American citizen without a trial. It has only rounded up and indefinitely detained Muslims without a warrant or formal charges. But the definition of “terrorist” and “traitor” is slowly starting to expand. During the Bush Administration, anti-war protestors were viewed as unpatriotic. During Obama’s Administration, “right wing extremists” have been identified as potential threats.

First they came for the Muslims…

This article is published on a nationally known website. It is intended to be read by anyone who is interested in the subject. However, you may express an opinion not so intended to a friend or associate. If you do so by phone or e-mail, the government may examine it to determine if you represent a threat.

Who will speak up for you?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Jury nullification, not a pardon for Edward Snowden

TAMPA, June 10, 2013 – The whistleblower who has risked his life and his freedom to expose the NSA’s domestic spying program has fled to Hong Kong. Caught red-handed violating one of the most fundamental limits on its power, codified in the Fourth Amendment, the federal government has responded predictably. It wants to prosecute its accuser.

While mainstream conservatives call for Hong Kong to extradite Snowden for trial, libertarian and civil libertarian groups have started a petition to get him pardoned. That’s the wrong solution.

Pardons are for people who have already been convicted. No jury with any sense of justice should allow that to happen.

Yes, there are plenty of laws that Edward Snowden probably broke, but as Thomas Jefferson famously said, “The law is often but the tyrant’s will.” Never was that more true than now.

You could also argue that Snowden broke a contract he entered into when accepting this employment and the security clearances that go with it. That’s probably true, but so did the federal government. It broke the contract known as the U.S. Constitution.

If the so-called “Justice Department” is successful in having Snowden extradited to the United States, he will have a jury trial. The jury will be instructed by a federal judge that their one and only responsibility is to weigh the facts and to determine whether there is sufficient proof that Snowden committed the acts alleged in the indictment. They will be instructed to consider nothing else in reaching a verdict. That leaves one question.

Who cares what the judge says?

Everyone on that jury will know why Snowden is being persecuted. It’s not like he sold defense secrets to a foreign enemy during a time of war. He told the American people about how their own government was spying on them. The juror who renders a guilty verdict in this case is betraying his country, not Edward Snowden.

At one time, juries were informed of their right to consider the justice of the law itself in addition to the facts of the case. If they believed they were being asked to convict a defendant of an unjust law, they were free to acquit the defendant.

They still are. They just aren’t told so by state or federal judges any more. That doesn’t change the fact that if a jury acquits Edward Snowden, there is absolutely nothing that the government can do about it. They can’t appeal a not guilty verdict. They can’t charge him again for the same crimes. The case is over and the people trump the government. That’s how it is supposed to work.

It’s equally important that there is no recourse against the jury, either. It’s not as if they can be prosecuted for rendering a verdict the government doesn’t like. Acquittal by a jury is as final as it gets. The government may try to drum up some other charges against the defendant, but they usually take their best shot first and the next jury could nullify as well.

The only question left is this: Are Americans so devoid of any sense of personal liberty, so completely brainwashed to obey authority without question that they would convict a man who has risked everything to defend their freedom?

I am calling on every eligible juror in America to take a stand right now. If you are called to serve on a jury for the trial of Edward Snowden, do not convict. I don’t care if he’s broken a thousand laws. We know what he did and why he did it. It is his accuser that needs to be put on trial, whether at the ballot box, in state assemblies or by other constitutional means. Let this government know that those who defend the U.S. Constitution against a government that violates it are safe in this country.

The line must be drawn here.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Dzhokhar Tsarnaev had right to remain silent only after he confessed

TAMPA, April 24, 2013 – Civil libertarians seemed to have cause for relief on Monday as reports were released that Boston Marathon bombing suspect Dzhokhar Tsarnaev had been formally charged with the crime, given a Miranda warning and assigned counsel.

Some prominent officials, including U.S. Senator Lindsey Graham, had called for Tsarnaev to be treated as an enemy combatant. The Obama administration indicated that it would prosecute the U.S. citizen in civilian court, but would invoke the public safety exception to the Fifth Amendment in questioning Tsarnaev before reading him his rights.

It appeared that justice had prevailed. Major news outlets reported that a bedside hearing had taken place, presided over by a judge, with counsel for the defense present. A transcript of the hearing is available online or in pdf above.

The bedrock legal principles that make America the “land of the free” had been preserved. Tsarnaev would be presumed innocent until proven guilty. He would have the benefit of counsel to challenge the government’s case against him, examine the evidence and cross examine any witnesses.

He would not be subject to punishment until he had been proven guilty in an adversarial proceeding, rather than merely accused.

There was only one problem. We now know that Tsarnaev had already confessed to the crime.

So, Tsarnaev had the right to remain silent only after there was no longer any reason to remain silent. That defeats the whole purpose of the Fifth Amendment. One of the reasons it was established was the routine use of torture in obtaining confessions in the Middle Ages.

So, how did federal authorities obtain Tsarnaev’s confession? Was he tortured? All we know is he was alone with federal authorities and helpless in his hospital bed.

It’s not like this is some paranoid inquiry into impossible circumstances. This is a government that has already admitted to employing “enhanced interrogation techniques” many times in the past. It has tortured U.S. citizens. Now, it is finding ways around due process. This is another step in the destruction of American liberty.

This government had already claimed the authority to declare someone an enemy combatant and, based solely on that accusation by the executive branch, to indefinitely detain that person without charges, without access to a lawyer or the opportunity to petition a judge for a writ of habeas corpus. There is no substantive difference between this and being “black bagged” by the KGB in the former Soviet Union.

Now, you don’t even have to be an “enemy combatant.” Even the kangaroo procedure the Obama administration employs to so designate someone is no longer necessary. The precedent is now set that a non-enemy combatant suspect can be treated the same way.

There is no evidence so far that Tsarnaev’s confession was compelled by torture and no reasonable cause to suspect it was. It’s hard to imagine him being waterboarded in his hospital bed with nurses and other patients nearby. On the contrary, he seems to have been treated humanely, perhaps because he was already severely injured when taken into custody.

That doesn’t change the fact that this government claims the authority to do so under an ever-widening set of circumstances. Any suggestion that this may be dangerous is met with the obtuse reply that “terrorists don’t deserve due process.” That begs what should be an obvious question.

If due process is the way we find out that someone is a terrorist, how can we deny a person due process because he’s a terrorist?

It’s not as if no one has ever been wrongly accused of terrorism. As Glenn Greenwald observes,

“As so many cases have proven – from accused (but exonerated) anthrax attacker Stephen Hatfill to accused (but exonerated) Atlanta Olympic bomber Richard Jewell to dozens if not hundreds of Guantanamo detainees accused of being the “worst of the worst” but who were guilty of nothing – people who appear to be guilty based on government accusations and trials-by-media are often completely innocent. Media-presented evidence is no substitute for due process and an adversarial trial.”

The idea that torture and denial of due process are acceptable merely because a suspect is accused of “terrorism” turns the entire foundation of American freedom on its head. If the United States is truly freer than other nations, it is not because of its representative government. It is because of what that representative government is not allowed to do.

Americans once understood that the federal government was not allowed to exercise any power that was not delegated to it in the Constitution. Over time, the government has increasingly behaved as if it may exercise any power not strictly prohibited to it by the Constitution or subsequent amendments.

Now, it claims the authority to exercise even those powers strictly prohibited by the Bill of Rights. Today it does so against Dzhokhar Tsarnaev.

Tomorrow it might be you.

Libertarianism, anyone?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

How do we know Dzhokhar Tsarnaev is a witch?

TAMPA, April 22, 2013 – Predictably, neoconservative politicians have already called for Boston Marathon bombing suspect Dzhokhar Tsarnaev to be treated as an enemy combatant, meaning that he would not enjoy the constitutional protections afforded criminal defendants in civilian courts. Pundits and blog commenters have echoed the sentiment that “terrorists don’t deserve due process” or other constitutional protections. According to this argument, they forfeited them when they decided to wage war against Americans.

This begs an obvious question. How do we know Dzhokhar Tsarnaev committed the crime and therefore doesn’t deserve due process, when due process is the means by which we make that determination?

Neoconservative logic isn’t much better than Sir Bedevere’s in the witch scenein Monty Python and the Holy Grail. Sadly, many Americans are acting every bit the mob depicted in that satire.

Read the rest of the article at Liberty Pulse…

The Bill of Rights was written for Dzhokar Tsarnaev

TAMPA, April 20, 2013 – 19-year-old Boston Marathon bombing suspect Dzhokar Tsarnaev is in custody. Assuming that Tsarnaev is indeed guilty of these crimes, a very real threat to public safety has been taken off the streets. That’s the good news.

The bad news is that the Tsarnaev brothers have taken the last vestiges of a free society in America down with them.

The Bill of Rights was already on life support before this tragedy. Before the dust settled after 9/11, the 4th Amendment had been nullified by the Patriot Act. The 5th and 6th Amendments were similarly abolished with the Military Commission Act of 2006 and the 2012 NDAA resolution, which contained a clause allowing the president to arrest and indefinitely detain American citizens on American soil without due process of law.

Americans had already grown accustomed to having their persons and papers searched at the airport without probable cause and without a warrant supported by oath or affirmation. After a brief, politically-motivated backlash against the Bush Administration, Americans similarly resigned themselves to the government tapping their phones, reading their e-mails and generally spying on them wherever they went. Things were already very, very bad.

They just got a lot worse.

Not only did the militarized domestic law enforcement complex put the City of Boston under martial law, but nobody seems to have found it out of the ordinary, much less outrageous. Yes, a few journalists like libertarian Anthony Gregory raised a finger. But, for the most part, nobody seemed to mind that the entire city was under military siege, complete with paramilitary units in full battle gear, battlefield ordinance and tanks. Tanks!

How did we get here? 238 years ago to the day, the inhabitants of the very same city started a war and seceded from their union over a mere infantry brigade attempting to disarm them. Now they cheer those who violate their rights much worse than the British ever did.

When Lee Harvey Oswald was similarly suspected of killing a police officer after assassinating the President of the United States, Dallas was not put under martial law. No tanks rolled through the streets. Oswald was armed at the time of his arrest and attempted to shoot the arresting officer, whose thumb stopped the hammer of Oswald’s pistol from discharging the weapon at point blank range.

It is noteworthy that the military siege was called off several hours before Tsarnaev was captured. In the end, he was found and taken into custody by the same methods that any other criminal has been for most of U.S. history.

So, there was no cause and effect relationship between the state show of power and the apprehension of the suspect.

Now, the DOJ has announced that Tsarnaev will not be read his Miranda rights, citing the “public danger” exception in the 5th Amendment. But the language in the amendment doesn’t remotely apply to this situation, nor is it even related to the protection against being a witness against oneself. It reads,

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

First of all, Tsarnaev is not in the Army, Navy or militia. Even if he were, the language would only have applied if Tsarnaev had been observed with the bomb in his hands just before committing the crime. The exception gives law enforcement the power to arrest him without first getting a Grand Jury indictment under those circumstances. It doesn’t release the government from the prohibition against compelling Tsarnaev to be a witness against himself after his arrest, which is the basis for Miranda.

If Tsarnaev is guilty, then the public danger was over once he was arrested. The government has no authority to waive any of its obligations for due process. He should be read his rights and allowed to remain silent without molestation. He should have an arraignment where he is given the opportunity to hear the charges against him and enter a plea of guilty or not guilty. If he is unable to afford a lawyer, one should be assigned to him at public expense. His guilt should be decided by a jury of his peers, not the government or the media.

The Bill of Rights was written for Dzhokar Tsarnaev. It wasn’t written for those suspected of violating minor violations.

The Boston Marathon bombing was a particularly heinous crime. No one with a pulse could help but feel deeply for the parents of an eight-year-old boy killed by this senseless act or the others killed or permanently maimed. Most red-blooded men would have liked nothing better than to have been the one who found Dzhokar Tsarnaev, praying he’d resist arrest.

Those are perfectly healthy feelings, but the awful power of the state is not supposed to be set loose based upon feelings. It is supposed to be restrained by reason. God help us if we forget.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.