civil liberties – praag.org

Tories’ repeal of Human Rights Act could spark constitutional crisis

Newly appointed Justice Secretary Michael Gove will push ahead with Conservative plans to repeal the Human Rights Act – a move experts warn could spark a constitutional crisis and blight Britain’s reputation on human rights worldwide.

Conservative Party sources, fresh from last week’s general election victory, told the Guardian the human rights reforms are imminent.

Civil liberty advocates warn the soon-to-be implemented measures would erode the right to life, the right to privacy, the right to a fair trial, the right to protest and the right to freedom from torture and discrimination.

Although the Tories were keen to push ahead with the legal changes during their last term in government, the move was blocked by the party’s ex-coalition partner the Liberal Democrats. But as a majority government, the Conservatives are now poised to push ahead with the reforms.

Central to the Tories’ election manifesto was a pledge to repeal the Human Rights Act (HRA) and significantly curb the power of the European Court of Human Rights (ECHR) in Britain. The legal reforms are expected to surface in PM David Cameron’s plans for his first 100 days, which will be outlined in the Queen’s Speech on May 27.

Under these changes, the Conservatives would replace the HRA with a Tory-styled British Bill of Rights. Britain’s Supreme Court would no longer be answerable to the ECHR, with the Strasbourg-based court losing the power to order changes to UK law.

The plans were drawn up in 2014 by then-Secretary of State for Justice Chris Grayling. At the time, Grayling proposed Britain withdraw from the ECHR if the Council of Europe rejects the Conservatives’ British Bill of Rights.

Constitutional crisis

Considerable doubt exists among experts that the Council of Europe, a human rights watchdog responsible for ensuring the Convention is upheld, will accept the Tories’ proposals. As a result, it is widely believed Britain will disengage from the European Convention on Human Rights and undermine Europe’s’ civil liberties framework in the process.

Britain’s withdrawal from the ECHR has been strongly opposed by former Secretary of State for Justice Kenneth Clarke and the UK’s ex-Attorney General Dominic Grieve. Grieve has long condemned the proposal, warning its consequences would be devastating.

In December, he said the government’s threat to potentially abandon the Strasbourg court undermines international law and could fray the constitutional fabric that holds the United Kingdom together. Echoing grieve, analysts warn such a withdrawal would spark a constitutional crisis in the UK.

They suggest the move would be flatly rejected by Nicola Sturgeon’s Scottish Nationalist Party (SNP) and would mean the Conservative government has violated Northern Ireland’s 1998 Good Friday Agreement.

Quacking Over Ducksters As Freedoms Go POOF

by Ilana Mercer

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While the nation fretted over the ouster of one Duckster from the parallel reality of a TV reality show, more of the protections enshrined in the Fourth Amendment of the U.S. Constitution evaporated.

Just after Christmas, district-court Judge William Pauley ruled that the privacy protections afforded by the Constitution were relative freedoms, not absolute ones. As such, Fourth-Amendment rights had to be calibrated against a government’s need to maintain a database of records that would (putatively) prevent future terrorist attacks.

Paraphrased by The Guardian, “Pauley argued that al-Qaida’s ‘bold jujitsu’ strategy to marry seventh century ideology with 21st century technology made it imperative that government authorities be allowed to push privacy boundaries.”

You’d think that the purview of the justice elite is to “marry” American law with Islamist ideology, rather than uphold a timeless principle that states: “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.”

“The judgment,” continued The Guardian, “directly contradicts the result of a similar challenge in a Washington court [a week earlier] which ruled the NSA’s bulk collection program was likely to prove unconstitutional and was ‘almost Orwellian’ in scale.”

Friday’s ruling, surmised the vigilant British paper, “makes it more likely that the issue will be settled by the U.S. Supreme Court, although it may be overtaken by the decision of Barack Obama on whether to accept the recommendations of a White House review panel to ban the NSA from directly collecting such data.”

Indeed, in August, media-enabled megalomaniac Obama told a rapt press corps that, in his magnanimity, he’d be prepared to “jiggle” his surveillance apparatus here and there to better allay unnecessary fears (“provide greater assurances,” as the president put it).

In his remarks, Big Daddy said—in defiance of the evidence—that he was comfortable “the NSA program [was] not being abused,” going on to promise that he’d outsource the matter to a new hire: A civil liberties officer. (CNN’s Jessica Yellin was in estrus.)

This is the inglorious history of American freedom and federalism. In the rare event that the Supreme Court refuses to play along (as nicely as plaything Justice John G. Roberts did for ObamaCare)—there is always a perfectly legal, extra-constitutional, quasi-legislative, quasi-executive, quasi-judicial, “independent” regulatory commission or executive agency to kill off or override constitutional protections.

A “civil liberties officer,” for example.

The nice men in periwigs who came up with the Fourth Amendment were recklessly naive to imagine that branches of a government, each of whose power is enhanced when the power of the other branches grows, would serve to check one another. The idea of a judiciary that would police the executive as an arm of a self-correcting tripartite government was worse than naive.

Ditto the Duck detritus: they are the new wholesome in America.

As “luck” would have it, legislation that flouts the Fourth Amendment was previously in place to provide Pauley with all the positive-law backing the judge needed to justify an anti-constitutional ruling. To wit, the grounds upon which the New York jurist dismissed this ACLU (American Civil Liberties Union) case against the NSA were, primarily, “that bulk collection was [already] authorized under existing laws allowing ‘relevant’ data collection to be authorized by secret US courts.”

Here you have the essence of modern-day, Managerial-State America. Natural law, common-law and Constitution have been nullified; buried under the rubble of legislation, statute, precedent, ad infinitum, rights having long-since been outsourced to the “better” judgment of bureaucrats and hired “experts.”

In this case, to Eric Holder’s Department of Justice.

Not only has Obama “the sinner” trusted Holder his “sin eater” with the expansion of surveillance-state USA; he has, it would appear, charged him with dealing a one-two Knockout punch to white America.

Eric Holder’s first arrest in the string of Knockout attacks across the country is a first in more than one way.

The arrest is unique in that it is of a white offender. Knockout attacks have been, almost exclusively, black-on-white hate crimes.

Were it not so disquieting for what it portends, this single arrest would be as comical as the specter of global-warming scientists marooned in Antarctic ice so densely packed that no man-made machinery can affect it.

Heeding Holder, the U.S. attorney for the southern district of Texas has remanded Conrad Alvin Barrett (27 years old) to prison for breaking the jaw of a man (79 years old), while “laughing and saying; ‘Knockout’” as he beat it.

The question is not whether this is a good arrest. If he’s guilty, let Barrett rot. The question is, why have there been no arrests for the multiple killings and maiming of innocents by feral black thugs across the country?

Befitting a banana republic, Holder, who carries water for President Camacho, is likely attempting to deploy the law to frame the Knock-Out phenomenon as an equal-opportunity crime. This is the administration’s ultimate racial reprisal against white victims of hate crimes: “know thy place, Honky!”

MSNBC host Melissa Harris-Perry will no doubt deem the “banana” usage here to be racist, “conceived by a group of wealthy white men who needed to . . . render [a black man] inferior and unequal and diminish his accomplishments.” This is what our unsharpened pencil thinks of the word “Obamacare.”

But Obama and his fans “can’t have their banana and eat it.” It is an incontrovertible fact that under Strong Man Obama, America’s banana-republic- and surveillance-state credentials are that much stronger.

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Journalism under threat

By Alan Rusbridger
Guardian Editor

On Sunday morning David Miranda, the partner of Guardian columnist Glenn Greenwald, was detained as he was passing through Heathrow airport on his way back to Rio de Janeiro, where the couple live. Greenwald is the reporter who has broken most of the stories about state surveillance based on the leaks from the former NSA contractor Edward Snowden. Greenwald’s work has undoubtedly been troublesome and embarrassing for western governments. But, as the debate in America and Europe has shown, there is considerable public interest in what his stories have revealed about the right balance between security, civil liberties, freedom of speech and privacy. He has raised acutely disturbing questions about the oversight of intelligence; about the use of closed courts; about the cosy and secret relationship between government and vast corporations; and about the extent to which millions of citizens now routinely have their communications intercepted, collected, analysed and stored.

In this work he is regularly helped by David Miranda. Miranda is not a journalist, but he still plays a valuable role in helping his partner do his journalistic work. Greenwald has his plate full reading and analysing the Snowden material, writing, and handling media and social media requests from around the world. He can certainly use this back-up. That work is immensely complicated by the certainty that it would be highly unadvisable for Greenwald (or any other journalist) to regard any electronic means of communication as safe. The Guardian’s work on the Snowden story has involved many individuals taking a huge number of flights in order to have face-to-face meetings. Not good for the environment, but increasingly the only way to operate. Soon we will be back to pen and paper.

Miranda was held for nine hours under schedule 7 of the UK’s terror laws, which give enormous discretion to stop, search and question people who have no connection with “terror”, as ordinarily understood. Suspects have no right to legal representation and may have their property confiscated for up to seven days. Under this measure – uniquely crafted for ports and airport transit areas – there are none of the checks and balances that apply once someone is in Britain proper. There is no need to arrest or charge anyone and there is no protection for journalists or their material. A transit lounge in Heathrow is a dangerous place to be.

Miranda’s professional status – much hand-wringing about whether or not he’s a proper “journalist – is largely irrelevant in these circumstances. Increasingly, the question about who deserves protection should be less “is this a journalist?” than “is the publication of this material in the public interest?”

The detention of Miranda has rightly caused international dismay because it feeds into a perception that the US and UK governments – while claiming to welcome the debate around state surveillance started by Snowden – are also intent on stemming the tide of leaks and on pursuing the whistleblower with a vengeance. That perception is right. Here follows a little background on the considerable obstacles being placed in the way of informing the public about what the intelligence agencies, governments and corporations are up to.

A little over two months ago I was contacted by a very senior government official claiming to represent the views of the prime minister. There followed two meetings in which he demanded the return or destruction of all the material we were working on. The tone was steely, if cordial, but there was an implicit threat that others within government and Whitehall favoured a far more draconian approach.

The mood toughened just over a month ago, when I received a phone call from the centre of government telling me: “You’ve had your fun. Now we want the stuff back.” There followed further meetings with shadowy Whitehall figures. The demand was the same: hand the Snowden material back or destroy it. I explained that we could not research and report on this subject if we complied with this request. The man from Whitehall looked mystified. “You’ve had your debate. There’s no need to write any more.”

During one of these meetings I asked directly whether the government would move to close down the Guardian’s reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government’s intention. Prior restraint, near impossible in the US, was now explicitly and imminently on the table in the UK. But my experience over WikiLeaks – the thumb drive and the first amendment – had already prepared me for this moment. I explained to the man from Whitehall about the nature of international collaborations and the way in which, these days, media organisations could take advantage of the most permissive legal environments. Bluntly, we did not have to do our reporting from London. Already most of the NSA stories were being reported and edited out of New York. And had it occurred to him that Greenwald lived in Brazil?

The man was unmoved. And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. “We can call off the black helicopters,” joked one as we swept up the remains of a MacBook Pro.

Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won’t do it in London. The seizure of Miranda’s laptop, phones, hard drives and camera will similarly have no effect on Greenwald’s work.

The state that is building such a formidable apparatus of surveillance will do its best to prevent journalists from reporting on it. Most journalists can see that. But I wonder how many have truly understood the absolute threat to journalism implicit in the idea of total surveillance, when or if it comes – and, increasingly, it looks like “when”.

We are not there yet, but it may not be long before it will be impossible for journalists to have confidential sources. Most reporting – indeed, most human life in 2013 – leaves too much of a digital fingerprint. Those colleagues who denigrate Snowden or say reporters should trust the state to know best (many of them in the UK, oddly, on the right) may one day have a cruel awakening. One day it will be their reporting, their cause, under attack. But at least reporters now know to stay away from Heathrow transit lounges.

The militarization of American policing

On Jan. 4 of last year, a local narcotics strike force conducted a raid on the Ogden, Utah, home of Matthew David Stewart at 8:40 p.m. The 12 officers were acting on a tip from Mr. Stewart’s former girlfriend, who said that he was growing marijuana in his basement. Mr. Stewart awoke, naked, to the sound of a battering ram taking down his door. Thinking that he was being invaded by criminals, as he later claimed, he grabbed his 9-millimeter Beretta pistol.

The police say that they knocked and identified themselves, though Mr. Stewart and his neighbors said they heard no such announcement. Mr. Stewart fired 31 rounds, the police more than 250. Six of the officers were wounded, and Officer Jared Francom was killed. Mr. Stewart himself was shot twice before he was arrested. He was charged with several crimes, including the murder of Officer Francom.

The police found 16 small marijuana plants in Mr. Stewart’s basement. There was no evidence that Mr. Stewart, a U.S. military veteran with no prior criminal record, was selling marijuana. Mr. Stewart’s father said that his son suffered from post-traumatic stress disorder and may have smoked the marijuana to self-medicate.

Early this year, the Ogden city council heard complaints from dozens of citizens about the way drug warrants are served in the city. As for Mr. Stewart, his trial was scheduled for next April, and prosecutors were seeking the death penalty. But after losing a hearing last May on the legality of the search warrant, Mr. Stewart hanged himself in his jail cell.

The police tactics at issue in the Stewart case are no anomaly. Since the 1960s, in response to a range of perceived threats, law-enforcement agencies across the U.S., at every level of government, have been blurring the line between police officer and soldier. Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.

The acronym SWAT stands for Special Weapons and Tactics. Their usual aim is to “clear” a building—that is, to remove any threats and distractions (including pets) and to subdue the occupants as quickly as possible.

The number of raids conducted by SWAT-like police units has grown accordingly. In the 1970s, there were just a few hundred a year; by the early 1980s, there were some 3,000 a year. In 2005 there were approximately 50,000 raids.

A number of federal agencies also now have their own SWAT teams, including the Fish & Wildlife Service, NASA and the Department of the Interior. In 2011, the Department of Education’s SWAT team bungled a raid on a woman who was initially reported to be under investigation for not paying her student loans, though the agency later said she was suspected of defrauding the federal student loan program.

The details of the case aside, the story generated headlines because of the revelation that the Department of Education had such a unit.

Americans have long been wary of using the military for domestic policing. Concerns about potential abuse date back to the creation of the Constitution, when the founders worried about standing armies and the intimidation of the people at large by an overzealous executive, who might choose to follow the unhappy precedents set by Europe’s emperors and monarchs. – WSJ