Response Regarding Lame Approaches To Terrorism Prevention
An aninymous comment regarding my post on " We Continue To Insist On Lame Approaches To Terror Prevention" asked the question: "Which parts of the Constitution and Bill of Rights, specifically?" in regard to my statement that the TSA employment of a scoring of international travelers "Seems to me that violates at least one part of the Constitution and several provisions of the Bill of Rights."
My full statement was:
This amounts to being labeled a criminal, or at least a potential criminal, without recourse, without the right of appeal, and even without the decency of allowing a person to confront the witnesses against them. Seems to me that violates at least one part of the Constitution and several provisions of the Bill of Rights.
Well, specifically, the following parts of the Constitution and Bill of Rights seem to have been abrogated, circumvented and/or violated:
By arbitrarily using an unproven method of rating travelers in such a manner as to prevent someone from traveling abroad, which a TSA authority stated could and would be done, there is an infringement upon the right to peacefully assemble. Several court cases at the federal level have associated the right to travel unhindered as a First Amendment right.
Then, by not allowing a person to see, and challenge such an arbitrary score, as well as the scoring process and system, the right to petition the government for the purposes of righting a wrong (redress of grievances) also violates the First Amendment.
Using such things as a credit report, which the government has no compelling interest to obtain without probable cause, and the ordinary citizen cannot access without permission, and the government cannot legally access without notification and consent under the Buckley Amendment (Privacy Act of 1974), is essentially a warrantless search and seizure of information an ordinary citizen or person residing or traveling within the United States has an expectation of privacy for under ordinary circumstances. Absent of probable cause, and merely traveling abroad (or attempting to travel abroad) does not constitute probable cause for any type of investigation, seizure, search or surveillance.
The use of such records as was described in the original article and discussed specifically by Ahern in his response to the interviewer, is nothing short of compelling testimony against one's self. In obtaining these records without consent of the individual, and preventing any review or challenge to the findings of this arbitrary system and procedure, not allowing the use of a habeas corpus writ or proceeding, there is a complete lack of due process, a prior restraint of freedom to travel (a definite liberty) without an indictment (which is a further denial of due process), and calls the individual(s) subjected to this scoring method to answer for an "otherwise infamous crime" because it essentially labels this person as a threat to the public, a criminal and inflicts a sentence of punishment (restricting travel) absent of due process.
Where to begin? There is no trial process, only an allegation (unfounded because the system used is fillwed with flaws and is, as of yet, an unproven technology and method) for which liberties are abrogated and/or violated. Since this is a methodology of searching for terrorists, and terrorism is a crime (indeed rising to the level of treason), it essentially brands the person confronted with a "bad score" with being a criminal. Thereafter, the victim of such a "bad score" is not informed of the nature and cause of the accusation, which is a clear violation of this Amendment. Since this is hidden from the public view, and is applied via an administrative process even though it purports to identify criminals, and there is no appeal or challenge available to the person beset with these "scores," there is a denial of the right to legal representation.
Since this approach can, and will, prevent a person from traveling, there are damages incurred by the person so identified that exceed twenty dollars, to wit, the cost of the airlines ticket. Additionally, since the process essentially labels a person so identified as a "terrorist" or a "potential terrorist," there is a matter of libel, slander and/or defamation of character. No one should be labeled a terrorist--which is without a doubt a despicable, hated and notorious person--without justification that can meet the legal standards set by numerous statutes and precedents. Even the government has no right to label any person without sound evidence--evidence that would be acceptable in a court of law, no less--that the person is, in fact and deed, such an evil and despised character. Thereafter, since there is a denial of due process, redress and access to the courts inherent in this methodology, even the ability to have the "facts" presented before a jury is denied. Therefore, the rules of common law are also denied, which is an infringement of inherent and protected rights.
By limiting travel abroad, the person is essentially a prisoner within the United States and no application for bail is available. While this may be the largest prison in the world, and its creature comforts may still be available to the person so accused and labeled, it is none-the-less an imposition of a sentence for which their is no bail. Since this process could deny someone from visiting their family--even in times of dire need--it certainly meets the criteria of "unusual." Indeed the entire process of denying travel abroad is certainly cruel--as is stated in the Declaration of Universal Rights to which the US is a signatory--so therefore the criteria of "cruel" is also met. Absent of clear and provable evidence, denying someone the right to travel is a cruel and unusual form of punishment, even more so since the methodology is untested, unproven and not able to be challenged.
The methodology, the lack of due process, the violation of those already delineated rights, and the damages inflicted upon a person under this process violates the very notion of justice in our system of government. Since it violates several rights, it certainly violates the notion that the "blessings of liberty" are secure in any fashion.
Further, since this process has no congressional authorization, and indeed exceeds even those provisions passed within the USA Patriot Act (which is itself a questionable piece of legislation), the executive branch has exceeded its authority (once again) and is in violation of the provisions of the Constitution that sets forth the powers, authority and separation of the same for congress and the executive.
I could continue, but I think I have made the case.
My full statement was:
This amounts to being labeled a criminal, or at least a potential criminal, without recourse, without the right of appeal, and even without the decency of allowing a person to confront the witnesses against them. Seems to me that violates at least one part of the Constitution and several provisions of the Bill of Rights.
Well, specifically, the following parts of the Constitution and Bill of Rights seem to have been abrogated, circumvented and/or violated:
Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. [emphasis added]
By arbitrarily using an unproven method of rating travelers in such a manner as to prevent someone from traveling abroad, which a TSA authority stated could and would be done, there is an infringement upon the right to peacefully assemble. Several court cases at the federal level have associated the right to travel unhindered as a First Amendment right.
Then, by not allowing a person to see, and challenge such an arbitrary score, as well as the scoring process and system, the right to petition the government for the purposes of righting a wrong (redress of grievances) also violates the First Amendment.
Amendment IV: 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. [emphasis added]
Using such things as a credit report, which the government has no compelling interest to obtain without probable cause, and the ordinary citizen cannot access without permission, and the government cannot legally access without notification and consent under the Buckley Amendment (Privacy Act of 1974), is essentially a warrantless search and seizure of information an ordinary citizen or person residing or traveling within the United States has an expectation of privacy for under ordinary circumstances. Absent of probable cause, and merely traveling abroad (or attempting to travel abroad) does not constitute probable cause for any type of investigation, seizure, search or surveillance.
Amendment V: 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 offense 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. [emphasis added]
The use of such records as was described in the original article and discussed specifically by Ahern in his response to the interviewer, is nothing short of compelling testimony against one's self. In obtaining these records without consent of the individual, and preventing any review or challenge to the findings of this arbitrary system and procedure, not allowing the use of a habeas corpus writ or proceeding, there is a complete lack of due process, a prior restraint of freedom to travel (a definite liberty) without an indictment (which is a further denial of due process), and calls the individual(s) subjected to this scoring method to answer for an "otherwise infamous crime" because it essentially labels this person as a threat to the public, a criminal and inflicts a sentence of punishment (restricting travel) absent of due process.
Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. [emphasis added]
Where to begin? There is no trial process, only an allegation (unfounded because the system used is fillwed with flaws and is, as of yet, an unproven technology and method) for which liberties are abrogated and/or violated. Since this is a methodology of searching for terrorists, and terrorism is a crime (indeed rising to the level of treason), it essentially brands the person confronted with a "bad score" with being a criminal. Thereafter, the victim of such a "bad score" is not informed of the nature and cause of the accusation, which is a clear violation of this Amendment. Since this is hidden from the public view, and is applied via an administrative process even though it purports to identify criminals, and there is no appeal or challenge available to the person beset with these "scores," there is a denial of the right to legal representation.
Amendment VII: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. [emphasis added]
Since this approach can, and will, prevent a person from traveling, there are damages incurred by the person so identified that exceed twenty dollars, to wit, the cost of the airlines ticket. Additionally, since the process essentially labels a person so identified as a "terrorist" or a "potential terrorist," there is a matter of libel, slander and/or defamation of character. No one should be labeled a terrorist--which is without a doubt a despicable, hated and notorious person--without justification that can meet the legal standards set by numerous statutes and precedents. Even the government has no right to label any person without sound evidence--evidence that would be acceptable in a court of law, no less--that the person is, in fact and deed, such an evil and despised character. Thereafter, since there is a denial of due process, redress and access to the courts inherent in this methodology, even the ability to have the "facts" presented before a jury is denied. Therefore, the rules of common law are also denied, which is an infringement of inherent and protected rights.
Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [emphasis added]
By limiting travel abroad, the person is essentially a prisoner within the United States and no application for bail is available. While this may be the largest prison in the world, and its creature comforts may still be available to the person so accused and labeled, it is none-the-less an imposition of a sentence for which their is no bail. Since this process could deny someone from visiting their family--even in times of dire need--it certainly meets the criteria of "unusual." Indeed the entire process of denying travel abroad is certainly cruel--as is stated in the Declaration of Universal Rights to which the US is a signatory--so therefore the criteria of "cruel" is also met. Absent of clear and provable evidence, denying someone the right to travel is a cruel and unusual form of punishment, even more so since the methodology is untested, unproven and not able to be challenged.
Preamble: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. [emphasis added]
The methodology, the lack of due process, the violation of those already delineated rights, and the damages inflicted upon a person under this process violates the very notion of justice in our system of government. Since it violates several rights, it certainly violates the notion that the "blessings of liberty" are secure in any fashion.
Further, since this process has no congressional authorization, and indeed exceeds even those provisions passed within the USA Patriot Act (which is itself a questionable piece of legislation), the executive branch has exceeded its authority (once again) and is in violation of the provisions of the Constitution that sets forth the powers, authority and separation of the same for congress and the executive.
I could continue, but I think I have made the case.
posted by Jim Downey at 3:41 AM
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