John W. Whitehead, Constitutional Attorney

What the Supreme Court’s ruling in Salinas v. Texas says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them. Mind you, this is the same court that agreed that cops who tasered a pregnant woman couldn’t be held accountable because they were not aware that repeated electro-shocks qualified as constitutionally excessive and unreasonable force.

Dealing a blow to the fundamental right of citizens to remain silent, a 5-4 United States Supreme Court  has ruled that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial.

In handing down their decision in Salinas v. Texas, the Court upheld the conviction of Genovevo Salinas, who was found guilty of homicide after prosecutors argued that Salinas’ silence during a police interview prior to his arrest was a “very important piece of evidence” and that only a guilty person would have remained silent when questioned about his connection to a crime. Justice Samuel Alito wrote in the majority opinion that Salinas “was required to assert the privilege in order to benefit from it,” even though a person questioned while under arrest could not have his silence used against him.

The case began in 1992, Juan and Hector Garza were found murdered in their apartment. Genovevo Salinas, an acquaintance of the men, was suspected by police as being responsible for the murders. The police approached Salinas at his home and asked him to accompany them to the police station so they could question him and clear his name. Salinas was never handcuffed and was not given Miranda warnings.

At the police station, Salinas was taken to an interview room where, during the course of the interview, police questioning became more accusatory, and Salinas was asked whether his father’s shotgun “would match the shells recovered at the scene of the murder.” Salinas remained silent and did not answer the question. The interview proceeded. At the conclusion of the interview, police arrested Salinas for outstanding traffic fines.

The district attorney charged Salinas with the murders, but Salinas wasn’t arrested on the murder charge until 2007. During the trial, the prosecutor suggested that Salinas’ silence during the police interview prior to his arrest was a “very important piece of evidence” and that only a guilty person would have remained silent when questioned about his connection to a crime. The jury found Salinas guilty of murder and sentenced him to twenty years in prison.

On appeal, Salinas argued that the prosecution’s emphasis on his pre-arrest silence as evidence of his guilt was a violation of the Fifth Amendment’s guarantee against self-incrimination. Two Texas appeals courts ruled that Salinas was not under government compulsion during the time of the police interview, thus he had no Fifth Amendment right to remain silent.

In upholding the lower courts’ rulings, the Supreme Court majority asserted that a person claiming the benefit of the Fifth Amendment’s privilege “must claim it” and a person does not normally claim the privilege by remaining silent. In Justice Stephen Breyer’s dissenting opinion, he argued that the fact that Salinas was a suspect in a criminal investigation gave rise to a reasonable conclusion that his silence derived from an exercise of his Fifth Amendment privilege.

The Rutherford Institute filed an amicus curiae brief in the case, arguing that a person’s refusal to answer police questions, even before arrest and before Miranda warnings are given, does not indicate guilt in light of the well-known “right to remain silent,” and exclusion of evidence of silence is in keeping with the Fifth Amendment’s guarantee that “[n]o person… shall be compelled in any criminal case to be a witness against himself.”

For more on this and other pressing issues relating to the emerging police state in America, read my new book A Government of Wolves: The Emerging American Police State, available now at Amazon.com.

“You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”—George Orwell, 1984

There’s a reason George Orwell’s 1984 is a predominant theme in my new book A Government of Wolves: The Emerging American Police State (available now on Amazon.com and in stores on June 25). It’s the same reason Orwell’s dystopian thriller about a futuristic surveillance society has skyrocketed to the top of book charts in the wake of recent revelations by former CIA employee and National Security Agency (NSA) contractor Edward Snowden that the nefarious spy agency is collecting the telephone records of millions of Verizon customers, with the complete blessing of the Obama administration.

“To the future or to the past, to a time when thought is free, when men are different from one another and do not live alone— to a time when truth exists and what is done cannot be undone: From the age of uniformity, from the age of solitude, from the age of Big Brother, from the age of doublethink — greetings! ” ― George Orwell

Orwell understood what many Americans, caught up in their partisan flag-waving, are still struggling to come to terms with: that there is no such thing as a government organized for the good of the people—even the best intentions among those in government inevitably give way to the desire to maintain power and control at all costs. As Orwell explains:

The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power. What pure power means you will understand presently. We are different from the oligarchies of the past in that we know what we are doing. All the others, even those who resembled ourselves, were cowards and hypocrites. The German Nazis and the Russian Communists came very close to us in their methods, but they never had the courage to recognize their own motives. They pretended, perhaps they even believed, that they had seized power unwillingly and for a limited time, and that just around the corner there lay a paradise where human beings would be free and equal. We are not like that. We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.

The fact that the U.S. government now has at its disposal a technological arsenal so sophisticated and invasive as to render any constitutional protections null and void, and these technologies are being used by the government to invade the privacy of the American people should not come as a surprise to anyone who has been paying attention over the past decade.

Spearheaded by the NSA, which has shown itself to care little for constitutional limits or privacy, the “security/industrial complex”—a marriage of government, military and corporate interests aimed at keeping Americans under constant surveillance—has come to dominate our government and our lives. At three times the size of the CIA, constituting one third of the intelligence budget and with its own global spy network to boot, the NSA has a long history of spying on Americans, whether or not it has always had the authorization to do so.

“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.”―George Orwell, Animal Farm

What many fail to realize, however, is that the government is not operating alone. It cannot. It requires an accomplice. Thus, the increasingly complex security needs of our massive federal government, especially in the areas of defense, surveillance and data management, have been met within the corporate sector, which has shown itself to be a powerful ally that both depends on and feeds the growth of governmental bureaucracy. For example, USA Today reports that five years after the 9/11 terrorist attacks, the homeland security business was booming to such an extent that it eclipsed mature enterprises like movie-making and the music industry in annual revenue. This security spending by the government to private corporations is forecast to exceed $1 trillion in the near future.

Money, power, control. There is no shortage of motives fueling the convergence of mega-corporations and government. But who is paying the price? The American people, of course, and you can be sure that it will take a toll on more than our pocketbooks. “You have government on a holy mission to ramp up information gathering and you have an information technology industry desperate for new markets,” says Peter Swire, the nation’s first privacy counselor in the Clinton Administration. “Once this is done, you will have unprecedented snooping abilities. What will happen to our private lives if we’re under constant surveillance?” We’re at that point now.

“Until they became conscious they will never rebel, and until after they have rebelled they cannot become conscious.”—George Orwell

Americans have been conditioned to accept routine incursions on their privacy rights. However, at one time, the idea of a total surveillance state tracking one’s every move would have been abhorrent to most Americans. That all changed with the 9/11 attacks. As professor Jeffrey Rosen observes, “Before Sept. 11, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometric surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity.”

We have, so to speak, gone from being a nation where privacy is king to one where nothing is safe from the prying eyes of government. In search of terrorists hiding amongst us–the proverbial “needle in a haystack,” as one official termed it–the government has taken to monitoring all aspects of our lives, from cell phone calls and emails to Internet activity and credit card transactions. Much of this data is being fed through fusion centers across the country. These are state and regional intelligence centers that collect data on you.

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”―George Orwell

Wherever you go and whatever you do, you are now being watched–especially if you leave behind an electronic footprint. When you use your cell phone, you leave a record of when the call was placed, who you called, how long it lasted and even where you were at the time. When you use your ATM card, you leave a record of where and when you used the card. There is even a video camera at most locations. When you drive a car enabled with GPS, you can be tracked by satellite. And all of this once-private information about your consumer habits, your whereabouts and your activities is now being fed to the U.S. government.

As I document in A Government of Wolves: The Emerging American Police State, the government has nearly inexhaustible resources when it comes to tracking our movements, from electronic wiretapping devices, traffic cameras and biometrics to radio-frequency identification cards, satellites and Internet surveillance.

“Big Brother is Watching You.”―George Orwell

Speech recognition technology now makes it possible for the government to carry out massive eavesdropping by way of sophisticated computer systems. Phone calls can be monitored, the audio converted to text files and stored in computer databases indefinitely. And if any “threatening” words are detected–no matter how inane or silly–the record can be flagged and assigned to a government agent for further investigation. And in recent years, federal and state governments, as well as private corporations, have been amassing tools aimed at allowing them to monitor Internet content. Users are profiled and tracked in order to identify, target and even prosecute them.

“Nothing was your own except the few cubic centimetres inside your skull. ” ― George OrwellIn such a climate, everyone is a suspect. And you’re guilty until you can prove yourself innocent. To underscore this shift in how the government now views its citizens, just before leaving office, President Bush granted the FBI wide-ranging authority to investigate individuals or groups, regardless of whether they are suspected of criminal activity.

Here’s what a lot of people fail to understand, however: it’s not just what you say or do that is being monitored, but how you think that is being tracked and targeted. We’ve already seen this play out on the state and federal level with hate crime legislation that cracks down on so-called “hateful” thoughts and expression, encourages self-censoring and reduces free debate on various subject matter.

Total Internet surveillance is merely the next logical step in the government’s attempts to predict and, more importantly, control the populace–and it’s not as far-fetched as you might think. For example, the NSA is now designing an artificial intelligence system that is designed to anticipate your every move. In a nutshell, the NSA will feed vast amounts of the information it collects to a computer system known as Aquaint (the acronym stands for Advanced QUestion Answering for INTelligence), which the computer can then use to detect patterns and predict behavior.

Thus, what we are witnessing, in the so-called name of security and efficiency, is the creation of a new class system comprised of the watched (average Americans such as you and me) and the watchers (government bureaucrats, technicians and private corporations).No information is sacred or spared. Everything from cell phone recordings and logs, to emails, to text messages, to personal information posted on social networking sites, to credit card statements, to library circulation records, to credit card histories, etc., is collected by the NSA. One NSA researcher actually quit the Aquaint program, “citing concerns over the dangers in placing such a powerful weapon in the hands of a top-secret agency with little accountability.”

Clearly, the age of privacy in America is coming to a close. If Orwell’s predictions prove true, what follows will be even worse. “If you want a picture of the future,” he forewarned, “imagine a boot stamping on a human face—for ever.”

For more on this and other pressing issues relating to the emerging police state in America, read my new book A Government of Wolves: The Emerging American Police State, available now at Amazon.com.

“We have been silent witnesses of evil deeds: we have been drenched by many storms; we have learnt the arts of equivocation and pretence; experience has made us suspicious of others and kept us from being truthful and open; intolerable conflicts have worn us down and even made us cynical. Are we still of any use? What we shall need is not geniuses, or cynics, or misanthropes, or clever tacticians, but plain, honest, straightforward men. Will our inward power of resistance be strong enough, and our honesty with ourselves remoreseless enough, for us to find our way back to simplicity and straightforwardness?” – Dietrich Bonhoeffer, 1943

In the wake of recent revelations about the National Security Agency’s (NSA) program of mass surveillance directed at all American citizens, Edward Snowden, the alleged leaker of the documents proving the government’s misdeeds, is being hailed as a hero by some, a traitor and criminal by others, while some simply don’t know what to think.

Here’s what I think: Snowden and the countless others like him who are daring to stand up to the government machine are acting as the moral conscience for a nation that has lost its way.

In our current governmental climate, where laws that run counter to the dictates of the Constitution are made in secret, passed without debate, and upheld by secret courts that operate behind closed doors, obeying one’s conscience can well render you a criminal. Or as George Orwell put it, “In a time of universal deceit, telling the truth is a revolutionary act.”

As I discuss in my new book, A Government of Wolves: The Emerging American Police State (available now on Amazon.com), some of history’s most pivotal events came about because someone or some group chose to speak out against wrongdoing at great personal cost, even if it meant “breaking” the law. Dietrich Bonhoeffer, a young German theologian with a brilliant future before him and a refuge in the United States, opted instead to take part in a plot to overthrow Hitler and his despotic regime, believing that “Silence in the face of evil is itself evil. God will not hold us guiltless. Not to speak is to speak. Not to act is to act.” For his “crime” against the Fuhrer, Bonhoeffer was put to death at Flossenburg Concentration Camp.

Examples of “lawbreakers” who follow their conscience in order to stand against tyranny abound in our own history, starting with the colonists who rose up in opposition to the British crown criminals. The engineers of the Underground Railroad and the leaders of the Civil Rights Movement were also considered criminals of their day. Remember, Martin Luther King Jr. was arrested upwards of twenty times, most often for violating Jim Crow laws which mandated racial segregation in public facilities.

While technically violating the laws of their time, these individuals chose to speak and act against injustice, whether in the form of tyranny, slavery, or segregation. Instead of keeping their heads down and going with the flow, they raised their voices and sacrificed their security, comfort, and even their lives.

This brings me back to Edward Snowden, who not only has provided a window into the inner workings of American government but is holding up a mirror to American society and reflecting back our inaction, our acceptance of corruption in high places, and our indifference about the steady erosions of our freedoms.

While Snowden’s revelations about the NSA were dismaying, they were not surprising. Indeed, what I have found more disconcerting is the Left-Right response to Snowden’s revelations, namely, the willingness by those on both sides to join forces in maintaining the governmental status quo, at all costs.

When politicians with such disparate views as Senators Diane Feinstein (D-Calif.) and Lindsey Graham (R-NC) both give a full-throated defense of the Obama administration’s undeniably egregious and invasive surveillance activities, it’s obvious that we are no longer dealing with questions of freedom, or surveillance, or terrorism, but rather the defense of government power at all costs.

Talk about showing one’s true colors. When politicians with such disparate views as Senators Diane Feinstein (D-Calif.) and Lindsey Graham (R-NC) both give a full-throated defense of the Obama administration’s undeniably egregious and invasive surveillance activities, it’s obvious that we are no longer dealing with questions of freedom, or surveillance, or terrorism, but rather the defense of government power at all costs.

What this collusion reveals is that we currently live under a regime which has fully embraced the Nixonian mantra of “If the president does it, it’s not illegal.” The system of checks and balances which is supposed to protect Americans from government overreach like the NSA spying program is obviously not working.

Even President Obama, the former constitutional law professor, understands this, albeit in a perverse, backwards sort of way. In a recent speech in San Jose, Obama declared: “If people can’t trust not only the executive branch but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here.” However, when all branches of government are condoning clearly unconstitutional activities by the government against the citizenry, that’s a problem.

Now available for advance purchase at Amazon.com and in stores on June 25.

Moreover, there is no room for trust in the relationship between the government and its citizens. Remember it was James Madison who warned that “All men having power ought to be distrusted to a certain degree.” Thomas Jefferson’s solution was simple: “bind them down from mischief with the chains of the Constitution.”

As for the claim that the government is protecting us from further acts of terrorism by systematically violating our civil liberties, Conor Friedersdorf of The Atlantic effectively exorcised that particular demon when he pointed out that the likelihood of dying in a terrorist attack is astronomically low, lower than the chances of dying in a car wreck or being hit by lightning.

Thus, the question we should be asking is not whether Edward Snowden is a criminal but why the rest of us aren’t criminals as well? What are you doing to push back against the excesses of government, to reclaim our freedoms, and to live up to the ideals embodied in the Declaration of Independence and the US Constitution? What are you doing to stop the emerging American police state?