Friday, November 5, 2010


I don't believe the government of the United States or any Western democracy can stop

another September 11th from occurring. They can get lucky and prevent one from happening;

but ultimately there will be more attacks. Given that reality, the latest proposal by the

Obama administration seems to have much more to do with failed drug wars, failed law

enforcement efforts, and failed human intelligence than it does with national security.

The White House wants legislation mandating any service which facilitates

communications have a built-in back door so the government can listen in or read whatever

it wishes. This requirement would include encrypted e-mail platforms like Blackberry, social

networks like Facebook, and any software which allows "peer to peer" communications like

Skype. Any encryption software would have to provide a way for the government to

unscramble the message.

The government would have to get a warrant to tap these communication systems; but

with the evisceration of the Fourth Amendment, the government can get a judge to agree to

a wiretap easier than Glenn Beck can produce tears.

Do I need to remind you the Bush administration didn't ask for warrants as it used

telecom companies and the NSA to "data mine" American's cellphones, e-mail, Internet

activities, Blackberries, and Smartphones? The FBI used national security letters to force

libraries and other institutions to turn over records of what Americans were reading and

researching (illegal by the way). We have no way of knowing if the Obama administration

discontinued these practices; but we do know a feckless Congress passed legislation granting

the telecom companies immunity and making these illegal acts legal.

Despite all the spying and illegal wiretaps and unconstitutional searches, the government

has not caught a major terrorist or terrorist cell. They didn't catch Richard Reed, the shoe

bomber, nor did they stop the Christmas Day underpants bomber. They completely missed

the Times Square bomber and the Fort Hood shooter. As of today, containers still come into

American ports unexamined and radicalized Americans still seem to be able to get to Pakistan

and Yemen for training without the U.S. government's knowledge. Even as they try to scare us

into giving up more of our civil liberties; law enforcement really wants these new tools to

continue a drug war they are losing, to spy on Americans who engage in political dissent, and

to catch little fish like the Fort Dix pizza delivery guys to justify monstrous budgets.

In Part One of this piece, USA Today uncovered the practice of U.S. attorneys lying,

covering up evidence, engaging in prosecutorial misconduct all in the name of getting the job

done. The result was innocent Americans going to prison for crimes they didn't commit.

The New York Times chronicled how FBI agents were so desperate to arrest a group of alleged

terrorists; they use their informant to try to entrap them into illegally buying a gun just in case

the evidence in the case was too thin and the case might "go south". In a recent editorial, the

Times excoriated an FBI agent sent to spy on an anti-war rally in Pittsburgh. He took pictures

of demonstrators and filed a report on who attended. The FBI lied when confronted by

the ACLU. They claimed the agent was there looking for a possible terrorist who might show

up at the rally. They lied to cover up their real purpose. FBI director Robert Mueller used

the lie when testifying in front of a Congressional committee. Every time the government

wants more power to spy on us and to invade our privacy. They promise us there are checks

and balances in the system to protect our Constitutional rights and every time we discover

that nothing could be further from the truth.

They say "trust us" and then we find out evidence is suppressed, agents lie, warrants

aren't worth the paper they are printed on and judges simply rubber stamp anything the

government wants to do as long as they claim it involves national security. The greatest

scandal of our criminal justice system, resulting in the gutting of the Fourth Amendment,

is caused by judges who fail to do their job and protect the rights of average Americans.

Now the Justice Department wants new laws to enable them to tap the Internet and turn it

into a facsimile of the old telephone system. Experts say this could stifle innovation because

software engineers won't be able to design new capabilities if they spend all their time

designing ways for the government to get in the back door. Of even more concern, is the

security threat "backdoors" represent. There have been a number of occasions where

cyber-attacks were successful because hackers used the built-in "backdoors" to get into

government and private industry information systems. In Greece, in 2005, hackers used a

mandated "backdoor" to spy on top official's phones including the Prime Minister's.

Imagine a U.S. Attorney, a zealot, salivating at getting a bad guy and he thinks you may be

the one. This U.S. Attorney can use the Patriot Act to secretly enter your home to bug your

computer and mine all Internet activities. National security letters can be used to check on

what you are reading or what your other interests might be. Your car is followed by access

to On-Star-like systems, your cellphone can be tracked and telecom companies will let them

listen in to all your calls.

Despite all this massive intrusion into your privacy, they uncover evidence which totally

exonerates you. What do you think the U.S. Attorney will do? After spending all that money

and time, will he just give up and slink away into the night?

If I thought the judiciary would act in its role as a check against executive power, maybe

these new proposals would be less troubling. However, we know the FISA (Foreign

Intelligence Surveillance Act) court, which meets in secret, grants warrants in over 98% of

the cases brought to it by the government. We know the FBI and CIA lie about the reasons

they need warrants to spy on us, if they ask for them at all. We know the U.S. Attorneys will

convict innocent Americans and cover up evidence which proves their innocence. Who is left

to protect "us" from "them"?

It is up to you. What will you tell your member of Congress to do regarding privacy,

the Fourth Amendment, and the government's request for even more spying authority? In

the past, Americans have been cavalier about their civil liberties until they are gone. Will

this be the case again? What do you think? I welcome your comments and rebuttals. Please

send them to


  1. there's still some issue with the word program
    Good post Bernie but it the word processor issue is not resolved

  2. Hard to believe we have reached this point. We used to pride ourselves on our Constitutional rights (you remember that Bernie growing up?)

    I never quite could get how an open free society like Germany in the 1930s could have been taken over by the obvious insane ideologies of the Nationalistic Socialistic Party.

    And yet now I think I see how it can be done. Will we ever get back these Constitutional rights taken from us? Will the latest Supreme Court Ruling in United Citizens be eventually overturned? Or will the continued wage repression and destruction of our Middle Class continue unabated by Big Banks who have often shown they can't even provide proof of ownership to the American homes they have kicked so many American families out of - 13 million sit vacant across the land - yet meanwhile, Hedge fund traders on Wallstreet are making $900,000 an hour.

    Jon Stewart wants us to believe we're just living in "Hard Times" - not the end of times. He and Barack Obama.

    And Neville Chamberlain thought the Munich agreement would stop the further expansions of a radical party in Germany.