Posts Tagged ‘supreme court’

“The year is 2025. The population is 325 million, and the FBI has the DNA profiles of all of them. Unlike fingerprints, these profiles reveal vital medical information. The universal database arrived surreptitiously. First, the Department of Defense’s repository of DNA samples from all military personnel, established to identify remains of soldiers missing from action, was given to the FBI. Then local police across the country shadowed individuals, collecting shed DNA for the databank. On the way, thousands of innocent people were imprisoned because they had the misfortune to have race-based crime genes in their DNA samples. Sadly, it did not have to be this way. If only we had passed laws against collecting and using shed DNA….”—Professor David H. Kaye

Every dystopian sci-fi film we’ve ever seen is suddenly converging into this present moment in a dangerous trifecta between science, technology and a government that wants to be all-seeing, all-knowing and all-powerful.

By tapping into your phone lines and cell phone communications, the government knows what you say. By uploading all of your emails, opening your mail, and reading your Facebook posts and text messages, the government knows what you write. By monitoring your movements with the use of license plate readers, surveillance cameras and other tracking devices, the government knows where you go.

By churning through all of the detritus of your life—what you read, where you go, what you say—the government can predict what you will do. By mapping the synapses in your brain, scientists—and in turn, the government—will soon know what you remember. And by accessing your DNA, the government will soon know everything else about you that they don’t already know: your family chart, your ancestry, what you look like, your health history, your inclination to follow orders or chart your own course, etc.

Of course, none of these technologies are foolproof. Nor are they immune from tampering, hacking or user bias. Nevertheless, they have become a convenient tool in the hands of government agents to render null and void the Constitution’s requirements of privacy and its prohibitions against unreasonable searches and seizures.

Consequently, no longer are we “innocent until proven guilty” in the face of DNA evidence that places us at the scene of a crime, behavior sensing technology that interprets our body temperature and facial tics as suspicious, and government surveillance devices that cross-check our biometrics, license plates and DNA against a growing database of unsolved crimes and potential criminals.

The government’s questionable acquisition and use of DNA to identify individuals and “solve” crimes has come under particular scrutiny in recent years. Until recently, the government was required to at least observe some basic restrictions on when, where and how it could access someone’s DNA. That has all been turned on its head by various U.S. Supreme Court rulings, including the recent decision to let stand the Maryland Court of Appeals’ ruling in Raynor v. Maryland, which essentially determined that individuals do not have a right to privacy when it comes to their DNA.

Although Glenn Raynor, a suspected rapist, willingly agreed to be questioned by police, he refused to provide them with a DNA sample. No problem. Police simply swabbed the chair in which Raynor had been sitting and took what he refused to voluntarily provide. Raynor’s DNA was a match, and the suspect became a convict. In refusing to hear the case, the U.S. Supreme Court gave its tacit approval for government agents to collect shed DNA, likening it to a person’s fingerprints or the color of their hair, eyes or skin.

Whereas fingerprint technology created a watershed moment for police in their ability to “crack” a case, DNA technology is now being hailed by law enforcement agencies as the magic bullet in crime solving. It’s what police like to refer to a “modern fingerprint.” However, unlike a fingerprint, a DNA print reveals everything about “who we are, where we come from, and who we will be.”

With such a powerful tool at their disposal, it was inevitable that the government’s collection of DNA would become a slippery slope toward government intrusion. Certainly, it was difficult enough trying to protect our privacy in the wake of a 2013 Supreme Court ruling in Maryland v. King that likened DNA collection to photographing and fingerprinting suspects when they are booked, thereby allowing the government to take DNA samples from people merely “arrested” in connection with “serious” crimes. At that time, Justice Antonin Scalia warned that as a result of the Court’s ruling, “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Now, in the wake of this Raynor ruling, Americans are vulnerable to the government accessing, analyzing and storing their DNA without their knowledge or permission. As the dissenting opinion in Raynor for the Maryland Court of Appeals rightly warned, “a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically sealed hazmat suit…. The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification.”

All 50 states now maintain their own DNA databases, although the protocols for collection differ from state to state. That DNA is also being collected in the FBI’s massive national DNA database, code-named CODIS (Combined DNA Index System), which was established as a way to identify and track convicted felons and has since become a de facto way to identify and track the American people from birth to death.

Indeed, hospitals have gotten in on the game by taking and storing newborn babies’ DNA, often without their parents’ knowledge or consent. It’s part of the government’s mandatory genetic screening of newborns. However, in many states, the DNA is stored indefinitely. What this means for those being born today is inclusion in a government database that contains intimate information about who they are, their ancestry, and what awaits them in the future, including their inclinations to be followers, leaders or troublemakers.

For the rest of us, it’s just a matter of time before the government gets hold of our DNA, either through mandatory programs carried out in connection with law enforcement and corporate America, or through the collection of our “shed” or “touch” DNA.

While much of the public debate, legislative efforts and legal challenges in recent years have focused on the protocols surrounding when police can legally collect a suspect’s DNA (with or without a search warrant and whether upon arrest or conviction), the question of how to handle “shed” or “touch” DNA has largely slipped through without much debate or opposition.

Yet as scientist Leslie A. Pray notes:

We all shed DNA, leaving traces of our identity practically everywhere we go. Forensic scientists use DNA left behind on cigarette butts, phones, handles, keyboards, cups, and numerous other objects, not to mention the genetic content found in drops of bodily fluid, like blood and semen. In fact, the garbage you leave for curbside pickup is a potential gold mine of this sort of material. All of this shed or so-called abandoned DNA is free for the taking by local police investigators hoping to crack unsolvable cases. Or, if the future scenario depicted at the beginning of this article is any indication, shed DNA is also free for inclusion in a secret universal DNA databank.

What this means is that if you have the misfortune to leave your DNA traces anywhere a crime has been committed, you’ve already got a file somewhere in some state or federal database—albeit it may be a file without a name. As Forensic magazine reports, “As officers have become more aware of touch DNA’s potential, they are using it more and more. Unfortunately, some [police] have not been selective enough when they process crime scenes. Instead, they have processed anything and everything at the scene, submitting 150 or more samples for analysis.” Even old samples taken from crime scenes and “cold” cases are being unearthed and mined for their DNA profiles.

Today, helped along by robotics and automation, DNA processing, analysis and reporting takes far less time and can bring forth all manner of information, right down to a person’s eye color and relatives. Incredibly, one company specializes in creating “mug shots” for police based on DNA samples from unknown “suspects” which are then compared to individuals with similar genetic profiles.

If you haven’t yet connected the dots, let me point the way: Having already used surveillance technology to render the entire American populace potential suspects, DNA technology in the hands of government will complete our transition to a suspect society in which we are all merely waiting to be matched up with a crime.

No longer can we consider ourselves innocent until proven guilty. As I make clear in my book A Government of Wolves: The Emerging American Police State, now we are all suspects in a DNA lineup until circumstances and science say otherwise.

Of course, there will be those who point to DNA’s positive uses in criminal justice, such as in those instances where it is used to absolve someone on death row of a crime he didn’t commit, and there is no denying its beneficial purposes at times. However, as is the case with body camera footage and every other so-called technology that is hailed as a “check” on government abuses, in order for the average person—especially one convicted of a crime—to request and get access to DNA testing, they first have to embark on a costly, uphill legal battle through red tape and, even then, they are opposed at every turn by a government bureaucracy run by prosecutors, legislatures and law enforcement.

What this amounts to is a scenario in which we have little to no defense of against charges of wrongdoing, especially when “convicted” by technology, and even less protection against the government sweeping up our DNA in much the same way it sweeps up our phone calls, emails and text messages.

Yet if there are no limits to government officials being able to access your DNA and all that it says about you, then where do you draw the line? As technology makes it ever easier for the government to tap into our thoughts, our memories, our dreams, suddenly the landscape becomes that much more dystopian.

With the entire governmental system shifting into a pre-crime mode aimed at detecting and pursuing those who “might” commit a crime before they have an inkling, let alone an opportunity, to do so, it’s not so far-fetched to imagine a scenario in which government agents (FBI, local police, etc.) target potential criminals based on their genetic disposition to be a “troublemaker” or their relationship to past dissenters. Equally disconcerting: if scientists can, using DNA, track salmon across hundreds of square miles of streams and rivers, how easy will it be for government agents to not only know everywhere we’ve been and how long we were at each place but collect our easily shed DNA and add it to the government’s already burgeoning database?

As always there will be those voices—well-meaning, certainly—insisting that if you want to save the next girl from being raped, abducted or killed, then we need to give the government all the tools necessary to catch these criminals before they can commit their heinous crimes.

It’s hard to argue against such a stance. If you care for someone, you’re particularly vulnerable to this line of reasoning. Of course we don’t want our wives butchered, our girlfriends raped, our daughters abducted and subjected to all manner of atrocities. But what about those cases in which the technology proved to be wrong, either through human error or tampering? It happens more often than we are told.

For example, David Butler spent eight months in prison for a murder he didn’t commit after his DNA was allegedly found on the murder victim and surveillance camera footage placed him in the general area the murder took place. Conveniently, Butler’s DNA was on file after he had voluntarily submitted it during an investigation years earlier into a robbery at his mother’s home. The case seemed cut and dried to everyone but Butler who proclaimed his innocence. Except that the DNA evidence and surveillance footage was wrong: Butler was innocent.

That Butler’s DNA was supposedly found on the victim’s nails was attributed to three things: one, Butler was a taxi driver “and so it was possible for his DNA to be transferred from his taxi via money or another person, onto the murder victim”; two, Butler had a rare skin condition causing him to shed flakes of skin—i.e., more DNA to spread around, much more so than the average person; and three, police wanted him to be the killer, despite the fact that “the DNA sample was only a partial match, of poor quality, and experts at the time said they could neither say that he was guilty nor rule him out.”

Moreover, despite the insistence by government agents that DNA is infallible, New York Times reporter Andrew Pollack makes a clear and convincing case that DNA evidence can, in fact, be fabricated. Israeli scientists “fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva,” stated Pollack. “They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.” The danger, warns scientist Dan Frumkin, is that crime scenes can be engineered with fabricated DNA.

Now if you happen to be the kind of person who trusts the government implicitly and refuses to believe it would ever do anything illegal or immoral, then the prospect of government officials—police, especially—using fake DNA samples to influence the outcome of a case might seem outlandish. But for those who know their history, the probability of our government acting in a way that is not only illegal but immoral becomes less a question of “if” and more a question of “when.”

WASHINGTON, D.C. — Citing a fundamental right to privacy, travel and association, The Rutherford Institute has asked the U.S. Supreme Court to prohibit police from gaining unfettered access to motel and hotel guest registries.

In an amicus curiae brief filed in City of Los Angeles v. Patel, et al., Rutherford Institute attorneys are asking the Court to declare unconstitutional a Los Angeles ordinance that allows police to inspect private hotel and motel records containing information about the persons who are staying there without a warrant or other judicial review. The Institute’s brief argues that the ordinance, which is similar to laws on the books in cities across the nation, flies in the face of historical protections affording hotel guests privacy in regards to their identities and comings-and-goings and burdens the fundamental rights of travel and association, which the Court has long safeguarded from arbitrary government scrutiny.

A Government of Wolves book cover“This practice of giving police officers unfettered, warrantless access to Americans’ hotel records is no different from the government’s use of National Security Letters to force banks, phone companies, casinos and other businesses to secretly provide the FBI with customer information such as telephone records, subscriber information, credit reports, employment information, and email records and not disclose the demands,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning A Government of Wolves: The Emerging American Police State. “Both ploys are merely different facets of the government’s campaign to circumvent, by hook or by crook, the clear procedural safeguards of the Fourth Amendment and force business owners to act as extensions of the police state.”

Section 41.49 of the City of Los Angeles Municipal Code requires all hotel owners to maintain a registry that collects information about persons staying at the hotel, including their names, addresses, vehicle information, arrival and departure dates, room prices, and payment methods. Under this law, it is a crime for a guest to provide false or misleading information in registering at the hotel.

The law also requires that hotels make these records available to any officer of the Los Angeles Police Department for inspection on demand, thereby allowing law enforcement officers to inspect this information at any time regardless of whether there is consent to the inspection or a warrant allowing it. Additionally, police need not have any measure of suspicion in order to review hotel registries under the ordinance and there need not be any history of criminal activity at the hotel. A hotel operator is guilty of a crime if he or she refuses to allow inspection.

In 2005, the Los Angeles Lodging Association and various owners and operators of hotels and motels in the city filed a lawsuit challenging the requirement of the ordinance that they grant unfettered access to their guest registries, arguing that the ordinance is a patent violation of the Fourth Amendment’s protection of persons’ houses, papers and effects against “unreasonable searches and seizures.”

In December 2013, the U.S. Court of Appeals for the Ninth Circuit upheld the hotel owners’ claims, ruling that the inspection of hotel registries by police is clearly a search for purposes of the Fourth Amendment. The Ninth Circuit also rejected the claim that hotels are a “closely regulated” industry that should expect government inspections, thereby holding that police are not excused from the general search warrant requirement.

In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that police should not be given carte blanche to rummage through records containing highly personal information because this could chill the exercise of other constitutional rights, such as the right to travel and the right of association.

Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

WASHINGTON, DC — In a strong endorsement of religious liberty, the United States Supreme Court has unanimously held that the Arkansas Department of Corrections violated the rights of a Muslim prisoner by refusing to allow him to grow a short beard in accordance with his religious beliefs. The Court’s decision in Holt v. Hobbs held that the prison policy forbidding beards for religious reasons violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law requiring that prison policies that substantially burden a prisoner’s exercise of religion be supported by a compelling interest.

The Rutherford Institute, which was instrumental in the drafting and enactment of RLUIPA in 2000, filed an amicus brief in support of the prisoner’s First Amendment rights, noting that prison authorities failed to consider other ways to maintain prison safety that would accommodate the religious exercise of prisoners.

A Government of Wolves book cover“At one time, prisoners were considered ‘slaves of the state,’ having forfeited their basic constitutional rights by engaging in criminal activity. Thankfully, a growing concern for how we treat ‘the least of these’ has ensured that prisoners are afforded some basic constitutional protections, even while the debate over prisoners’ rights—whether it pertains to religious freedom, the right to vote, or the right to bodily integrity—rages on,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “At a time when America’s prison population is growing, laws criminalizing the most mundane activities are on the rise, states have a financial incentive to keep private prisons at capacity, and the courts are inclined to side with law enforcement in matters of security—no matter how questionable the claim or minimal the accommodation, it is in all of our best interests to ensure that those incarcerated are treated as we ourselves would want to be treated if the tables were turned: with dignity, decency and compassion.”

Gregory Holt is a prisoner assigned to a prison within the Arkansas Department of Correction (“ADC”). One essential tenet of Holt’s Salafi Muslim faith is to follow the sayings of the Prophet Muhammad as collected in the hadith. This includes the requirement to “keep the mustaches short [but] leave the beard as it is.” The ADC grooming policy, however, prohibits prisoners from growing beards, although it does allow beards to be maintained by prisoners with diagnosed dermatological conditions. After Holt’s request for an exemption from the no-beards rule was denied by prison officials, he brought a lawsuit alleging that application of the rule to him violated RLUIPA and seeking an order that he be allowed to grow and maintain a one-half inch beard.

At a court hearing, prison officials asserted their belief that the no-beard rule was needed to protect prison security because inmates could hide contraband in a one-half inch beard, although they were unable to provide any specific examples. Accepting this testimony and deferring to the judgment of these prison officials, the lower courts ruled that officials had demonstrated a “compelling” interest for the no-beard rule and that the rule was the least restrictive means of furthering that interest, thereby satisfying the strict scrutiny test required by RLUIPA. The Supreme Court granted Holt’s request to review the case and resolve a conflict in the decisions of federal courts, most of which have ruled that prison no-beard policies violate the rights of Muslim prisoners under RLUIPA.

In its amicus brief supporting Holt, Rutherford Institute attorneys argued that the security concerns of ADC are largely illusory, as shown by the experience of more than forty prison systems that have grooming policies without express restrictions on beards, or have provisions for religious exceptions. Affiliate attorneys Anand Agneshwar, Carl S. Nadler and Anna K. Thompson of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in theamicus brief before the Supreme Court.

WASHINGTON, DC — Ruling in two separate cases in Plumhoff v. Rickard and Wood v. Moss, the U.S. Supreme Court has once again refused to hold law enforcement officials accountable for allegedly violating citizens’ constitutional rights. In the first case, the Court dismissed complaints against police officers who were involved in a fatal shooting, despite Fourth Amendment concerns that the officers needlessly resorted to a deadly use of force, and in the second, the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. Noting that these decisions are part of a recent trend toward granting government officials “qualified immunity” in lawsuits over alleged constitutional violations, John W. Whitehead, president of The Rutherford Institute, warned that such rulings incentivize government officials to violate constitutional rights without fear of repercussion.

“Not a day goes by without reports of police officers overstepping the bounds of the Constitution and brutalizing, terrorizing and killing the citizenry. Indeed, the list of incidents in which unaccountable police abuse their power, betray their oath of office and leave taxpayers bruised, broken and/or killed grows longer and more tragic by the day to such an extent that Americans are now eight times more likely to die in a police confrontation than they are to be killed by a terrorist,” said constitutional attorney John W. Whitehead, author of A Government of Wolves: The Emerging American Police State. “This lawlessness on the part of government officials, an unmistakable characteristic of a police state, is made possible in large part by the courts, which increasingly defer to law enforcement and prioritize security over civil liberties. In so doing, the government gives itself free rein to abuse the law, immune from reproach, and we are all the worse off for it.”

In Wood v. Moss, the Ninth Circuit Court of Appeals found that Secret Service agents who removed only anti-Bush protesters (while allowing pro-Bush supporters standing on an adjacent street to remain) were not immune from lawsuit on First Amendment grounds, and had to make a showing that their actions were not unlawfully motivated by the viewpoint of the protesters. In reversing the Ninth Circuit, the U.S. Supreme Court held that the protesters’ rights to “equal access to the President” were not clearly established under the law, and that the agents’ actions were not motivated by the viewpoint of the protesters.

In Plumhoff v. Rickard, the Sixth Circuit Court of Appeals ruled that police officers who used lethal force against a man fleeing police in a high speed car chase were not immune from a wrongful death suit, and that the case should continue to trial. In Plumhoff, the deceased plaintiff led police officers on a high-speed car chase, which came to a halt after his car was spun out in a parking lot.  Officers proceeded to fire three shots at the stopped vehicle, then fired an additional 12 shots as the vehicle backed away, eventually killing both the driver and passenger of the vehicle.  The Sixth Circuit held that it could not conclude that the officers’ conduct was reasonable as a matter of law, and instead should proceed to a fact finder. In reversing the Sixth Circuit’s decision, the Supreme Court held that the officers’ use of deadly force to terminate the car chase did not violate the Fourth Amendment and the officers were immune from suit.

“I thought I had freedom of speech here,” the man said to the police officer.
“You don’t. You just lost it,” the officer replied.

Once again, the U.S. government is attempting to police the world when it should be policing its own law enforcement agencies. We’ve got a warship cruising the Black Sea, fighter jets patrolling the Baltic skies, and a guided-missile destroyer searching the South China Sea for the downed Malaysia Airlines flight. All the while, back home in the U.S., our constitutional rights are going to hell in a hand basket, with homeowners being threatened with eviction for attempting to live off the grid, old women jailed for feeding crows, and citizens armed with little more than a cell phone arrested for daring to record police activities.

Robin Speronis now finds herself threatened with eviction from her own Florida home for daring to live off the grid, independent of city utilities such as water and electricity. City officials insist the Cape Coral resident’s chosen way of life violates international property maintenance code and city ordinances. Mary Musselman, also a Florida resident, is being held in jail without bond for “feeding wild animals.” The 81-year-old Musselman, on probation after being charged with feeding bears near her home, was arrested after officers discovered her leaving bread out for crows. Meanwhile, Brandy Berning of Florida was forced to spend a night in jail after recording her conversation with an officer who pulled her over for a routine traffic stop.

Welcome to the farce that passes for law and order in America today, where, as I point out in my book A Government of Wolves: The Emerging American Police State, crime is low, militarized police activity is on the rise, and Americans are being penalized for living off the grid, feeding wild animals, holding Bible studies in their back yard, growing vegetables in their front yard, collecting rainwater, and filming the police.

This latter point should really stick in your craw. Consider the irony: the government insists it can carry out all manner of surveillance on us—listen in on our phone calls, read our emails and text messages, track our movements, photograph our license plates, even enter our biometric information into DNA databases—but if we dare to return the favor, even a little, we get roughed up by the police, arrested, charged with violating various and sundry crimes (often trumped up), and forced to make restitution.

For example, George Thompson of Boston was arrested after he used his cell phone to record a police officer he describes as being “out of control.” University of Texas college student Abie Kyle Ikhinmwi was arrested after recording a police speed trap with her cell phone. Kansas teen Addison Mikkelson was arrested after filming a patrol car allegedly speeding and failing to use a turn signal.

Leon Rosby was filming a police standoff in June 2013, his cellphone in one hand and his dog’s leash in the other, when three officers approached him. Anticipating a problem, Rosby placed his 2-year-old Rottweiler, Max, in his car. The LA Times reports: “As officers cuffed Rosby, the dog escaped through an open window and began to bark and lunge at officers. One officer tried to grab the dog’s leash, then drew his gun and fired four shots, killing Max. Video of the incident went viral on YouTube, prompting a public outcry and drawing protesters to the Police Department headquarters.” Rosby has now filed a civil rights lawsuit against the city and the three police officers.

And then there is the Baltimore man who was threatened by police after they discovered him filming them during an arrest. The local CBS station ran the footage of the ensuing confrontation, which went something like this:

“I’m allowed to do this,” the man told the officer.

“Get it out of my face,” the officer replied.

“I have my rights,” the man said.

“You have no rights,” the officer said.

But the man didn’t stop rolling and was once again aggressively approached.

“Do you see the police presence here? Do you see us all? We’re not [expletive] around. Do you understand? Do not disrespect us and do not not listen to us,” the officer said. “Now walk away and shut your [expletive] mouth or you’re going to jail, do you understand?”

After backing away, the officer came at the man a third time, appearing to grab him.

“I thought I had freedom of speech here,” the man said.

“You don’t. You just lost it,” the officer replied.

And that, in a nutshell, is what happens when law enforcement officials—not just the police, but every agent of the government entrusted with enforcing laws, from the president on down—are allowed to discard the law when convenient. At the point where there’s a double standard at play, where the only ones having to obey the law are the citizenry and not the enforcers, then that vital “social contract” that John Locke envisioned as the basis for society breaks down. The more we allow government officials to operate outside the law, the more we ensure that the law becomes only a tool to punish us, rather than binding and controlling the government, as it was intended.

This brings me back to the problem of Americans getting arrested for filming the police. Until recently, this has primarily been a problem experienced by journalists and photographers attempting to document political protests and other disturbances involving the police. However, with the preponderance of smart phones capable of recording audio and video, individuals who dare to record police engaged in questionable or abusive activities in public are increasingly finding themselves on the receiving end of the harsh treatment they intended to document. These videos, if widely distributed, can be a powerful method of subjecting police to closer scrutiny and holding them accountable to respecting the rights of those they are supposed to serve.

Naturally, police agencies and unions have sought out legal prohibitions on such videos from being created. Massachusetts police, for instance, have invoked a state surveillance law to charge citizen video-makers criminally for their actions. Because the state surveillance law requires “two-party” consent, most kinds of public filming can be construed as illegal. Similar laws exist in California, Florida, Illinois, Michigan, and Pennsylvania. The law was enacted to protect private citizens from invasive surveillance, but the police have exploited it to curtail free speech that tarnishes their public image. Police claim that this regulation gives them legal justification to prohibit filming by citizens such as Jeffrey Manzelli, a journalist who recorded the police intimidating protesters at a rally and was arrested and charged under the law.

Saddled with costly lawsuits brought by individuals allegedly brutalized by police who didn’t appreciate their actions being filmed, a few cities across the country are attempting to adopt policies to protect citizens who film the police. In Troy, N.Y., for example, city police officers would face a fine and jail time if they stop people from legally photographing or filming them. If adopted, the Troy ordinance, which would carry a maximum $5,000 fine and a jail term of up to 15 days for an officer found guilty of violating it, would be the first of its kind in the country.

As part of a $200,000 legal settlement, Indianapolis police will soon be required to remind its officers that citizens have a legal right to videotape on-duty police officers. The case arose after a 66-year-old Indianapolis resident was tackled to the ground, arrested and charged with resisting arrest, disorderly conduct and public intoxication (he was found not guilty of the charges) after he used his cellphone to record police arresting a young man in his neighbor’s driveway. There is also a movement afoot to equip police with on-officer cameras that would provide footage of what an officer sees.

The courts, thus far, have favored the First Amendment rights of eyewitness filmmakers, even in the face of state efforts to outlaw such activities. In 2012, the U.S. Supreme Court refused to hear an appeal of an Illinois eavesdropping law that makes recording law enforcement officers a first-class felony punishable by up to 15 years in prison. In 2013, the U.S. Department of Justice issued a statement of interest in the case of Mannie Garcia v. Montgomery County, Md., declaring that not only do individuals have a First Amendment right to record officers publicly doing their duties, they also have Fourth and Fourteenth Amendment rights protecting them from having those recordings seized without a warrant or due process.

The Garcia case involves a journalist who was arrested and charged with disorderly conduct for filming police as they detained two men. According to the lawsuit, police “dragged Garcia to the police car, put him in handcuffs, threw him to the ground by kicking his feet out from under him, taunted him, threatened to arrest his wife if she came too close and took his camera, and seized the memory card, which was never returned.”

The problem, as the U.S. Court of Appeals for the Seventh Circuit recognized in Payne v. Pauley, is that “[p]olice officers must be more thick skinned than the ordinary citizen and must exercise restraint in dealing with the public” and “must not conceive that every threatening or insulting word, gesture, or motion amounts to disorderly conduct.”

The difficulty we face is that police officers are becoming increasingly thin skinned, less restrained in dealing with the public, and more inclined to conceive every word, gesture, or motion as a threat. In an ideal world, police would recognize that, as public servants, they are rightfully subject to recording and surveillance when carrying out their public duties. Unfortunately, this is far from an ideal world.

So what are we to do?

We must continue to stand up for our rights, record police when the opportunity presents itself, and politely remind any offended officers that they are, in fact, our public servants and, as such, their behavior is subject to public scrutiny. If they disagree and attempt to stop us from recording, we can refer them to the U.S. Constitution, which they have sworn to uphold, which protects our right to record matters of public interest. And if they continue to insist on hauling people to jail because they don’t like the idea of transparency and accountability, they can take it up with the courts. The goal is to eventually arrive at a point where we can keep a watchful eye on our government officials, instead of the other way around. As Justice Louis D. Brandeis once observed, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” — John W. Whitehead

“Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. 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 was striking about this year’s State of the Union address was not the sheer arrogance of the president’s remarks, the staged nature of the proceedings and interactions, or the predictable posturing of the rebuttals, but the extent to which the members of the various branches of government—President Obama, Congress, the Supreme Court, and the assorted government agencies—are just one big, brawling, noisy, semi-incestuous clan.

Watching these bureaucrats, both elected and appointed, interact in the unguarded moments before the event, with their hugging and kissing and nudging and joking and hobnobbing and general high spirits, I was reminded anew that these people—Republicans and Democrats alike—are united in a common goal, and it is not to protect and defend the Constitution. No, as Orwell recognized in Animal Farm, their common goal is to maintain the status quo, a goal that is helped along by an unquestioning, easily mollified, corporate media. In this way, the carefully crafted spectacle that is the State of the Union address is just that: an exaggerated farce of political theater intended to dazzle, distract and divide us, all the while the police state marches steadily forward.

No matter what the president and his cohorts say or how convincingly they say it, the reality Americans must contend with is that the world is no better the day after President Obama’s State of the Union address than it was the day before. Indeed, if the following rundown on the actual state of our freedoms is anything to go by, the world is a far more dangerous place.

Americans have no protection against police abuse. It is no longer unusual to hear about incidents in which police shoot unarmed individuals first and ask questions later, such as the 16-year-old teenager who skipped school only to be shot by police after they mistook him for a fleeing burglar. Then there was the unarmed black man in Texas “who was pursued and shot in the back of the neck by Austin Police… after failing to properly identify himself and leaving the scene of an unrelated incident.” And who could forget the 19-year-old Seattle woman who was accidentally shot in the leg by police after she refused to show her hands? What is increasingly common, however, is the news that the officers involved in these incidents get off with little more than a slap on the hands.

Americans are little more than pocketbooks to fund the police state. If there is any absolute maxim by which the federal government seems to operate, it is that the American taxpayer always gets ripped off. This is true, whether you’re talking about taxpayers being forced to fund high-priced weaponry that will be used against us, endless wars that do little for our safety or our freedoms, or bloated government agencies such as the National Security Agency with its secret budgets, covert agendas and clandestine activities. Rubbing salt in the wound, even monetary awards in lawsuits against government officials who are found guilty of wrongdoing are paid by the taxpayer.

Americans are no longer innocent until proven guilty. We once operated under the assumption that you were innocent until proven guilty. Due in large part to rapid advances in technology and a heightened surveillance culture, the burden of proof has been shifted so that the right to be considered innocent until proven guilty has been usurped by a new norm in which all citizens are suspects. This is exemplified by police practices of stopping and frisking people who are merely walking down the street and where there is no evidence of wrongdoing. Likewise, by subjecting Americans to full-body scans and license-plate readers without their knowledge or compliance and then storing the scans for later use, the government—in cahoots with the corporate state—has erected the ultimate suspect society. In such an environment, we are all potentially guilty of some wrongdoing or other.

Americans no longer have a right to self-defense. In the wake of various shootings in recent years, “gun control” has become a resounding theme for government officials, with President Obama even going so far as to pledge to reduce gun violence “with or without Congress.” Those advocating gun reform see the Second Amendment’s right to bear arms as applying only to government officials. As a result, even Americans who legally own firearms are being treated with suspicion and, in some cases, undue violence. In one case, a Texas man had his home subjected to a no-knock raid and was shot in his bed after police, attempting to deliver a routine search warrant, learned that he was in legal possession of a firearm. In another incident, a Florida man who was licensed to carry a concealed firearm found himself detained for two hours during a routine traffic stop in Maryland while the arresting officer searched his vehicle in vain for the man’s gun, which he had left at home.

Americans no longer have a right to private property. If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government. Likewise, if government officials can fine and arrest you for growing vegetables in your front yard, praying with friends in your living room, installing solar panels on your roof, and raising chickens in your backyard, you’re no longer the owner of your property.

Americans no longer have a say about what their children are exposed to in school. Incredibly, the government continues to insist that parents essentially forfeit their rights when they send their children to a public school. This growing tension over whether young people, especially those in the public schools, are essentially wards of the state, to do with as government officials deem appropriate, in defiance of the children’s constitutional rights and those of their parents, is reflected in the debate over sex education programs that expose young people to all manner of sexual practices and terminology, zero tolerance policies that strip students of any due process rights, let alone parental involvement in school discipline, and Common Core programs that teach students to be test-takers rather than critical thinkers.

Americans are powerless in the face of militarized police. In early America, citizens were considered equals with law enforcement officials. Authorities were rarely permitted to enter one’s home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen’s home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant—which the police had to allow citizens to read before arresting them. (Daring to dispute a warrant with a police official today who is armed with high-tech military weapons and tasers would be nothing short of suicidal.) As police forces across the country continue to be transformed into outposts of the military, with police agencies acquiring military-grade hardware in droves, Americans are finding their once-peaceful communities transformed into military outposts, complete with tanks, weaponry, and other equipment designed for the battlefield.

Americans no longer have a right to bodily integrity. Court rulings undermining the Fourth Amendment and justifying invasive strip searches have left us powerless against police empowered to forcefully draw our blood, strip search us, and probe us intimately. Accounts are on the rise of individuals—men and women—being subjected to what is essentially government-sanctioned rape by police in the course of “routine” traffic stops. Most recently, a New Mexico man was subjected to a 12-hour ordeal of anal probes, X-rays, enemas, and finally a colonoscopy because he allegedly rolled through a stop sign.

Americans no longer have a right to the expectation of privacy. Despite the staggering number of revelations about government spying on Americans’ phone calls, Facebook posts, Twitter tweets, Google searches, emails, bookstore and grocery purchases, bank statements, commuter toll records, etc., Congress, the president and the courts have done little to nothing to counteract these abuses. Instead, they seem determined to accustom us to life in this electronic concentration camp.

Americans no longer have a representative government. We have moved beyond the era of representative government and entered a new age, let’s call it the age of authoritarianism. History may show that from this point forward, we will have left behind any semblance of constitutional government and entered into a militaristic state where all citizens are suspects and security trumps freedom. Even with its constantly shifting terrain, this topsy-turvy travesty of law and government has become America’s new normal. It is not overstating matters to say that Congress, which has done its best to keep their unhappy constituents at a distance, may well be the most self-serving, semi-corrupt institution in America.

Americans can no longer rely on the courts to mete out justice. The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency, the justices of the Supreme Court have become the architects of the American police state in which we now live, while the lower courts have appointed themselves courts of order, concerned primarily with advancing the government’s agenda, no matter how unjust or illegal.

Yes, the world is a far more dangerous place than it was a year ago. What the president failed to mention in his State of the Union address, however (and what I document in my book A Government of Wolves: The Emerging American Police State), is the fact that it’s the government that poses the gravest threat to our freedoms and way of life, and no amount of politicking, parsing or pandering will change that. — John W. Whitehead

“[E]verywhere, “time is winding up,” in the words of one of our spirituals, “corruption in the land, people take a stand, time is winding up.”—Martin Luther King Jr.

We now live in a two-tiered system of governance. There are two sets of laws: one set for the government and its corporate allies, and another set for you and me.

The laws which apply to the majority of the population allow the government to do things like sending SWAT teams crashing through your door in the middle of the night, rectally probing you during a roadside stop, or listening in on your phone calls and reading all of your email messages, confiscating your property, or indefinitely detaining you in a military holding cell. These are the laws which are executed every single day against a population which has up until now been blissfully ignorant of the radical shift taking place in American government.

Then there are the laws constructed for the elite, which allow bankers who crash the economy to walk free. They’re the laws which allow police officers to avoid prosecution when they shoot unarmed citizens, strip search non-violent criminals, or taser pregnant women on the side of the road, or pepper spray peaceful protestors. These are the laws of the new age we are entering, an age of neo-feudalism, in which corporate-state rulers dominate the rest of us, where the elite create the laws which can result in a person being jailed for possessing a small amount of marijuana while bankers that launder money for drug cartels walk free. In other words, we have moved into an age where we are the slaves and they are the rulers.

Unfortunately, this two-tiered system of government has been a long time coming. As I detail in my book A Government of Wolves: The Emerging American Police State, the march toward an imperial presidency, to congressional intransigence and impotence, to a corporate takeover of the mechanisms of government, and the division of America into haves and have nots has been building for years.

Thus we now find ourselves at a point where, for the first time in history, Congress is dominated by a majority of millionaires who are, on average, 14 times wealthier than the average American. Making matters worse, as the Center for Responsive Politics reports, “at a time when lawmakers are debating issues like unemployment benefits, food stamps and the minimum wage, which affect people with far fewer resources, as well as considering an overhaul of the tax code,” our so-called representatives are completely out of touch with the daily struggles of most Americans–those who live from paycheck to paycheck and are caught in the exhausting struggle to survive on a day-to-day basis.

Indeed, although America is supposed to be a representative republic, these people– who earn six-figure salaries and inhabit a world exempt from parking tickets, where gym membership is free and health care is second-to-none, where you only have to work two, maybe three days a week and get 32 fully reimbursed road trips home a year, travel to foreign lands, discounts in Capitol Hill tax-free shops and restaurants, free reserved parking at Washington National Airport, free fresh-cut flowers from the Botanic Gardens, and free assistance in the preparation of income taxes–neither represent nor serve the American people. They have instead appointed themselves our masters.

While Congress should be America’s representative body, too many of its members bear little resemblance to those they have been elected to represent. As Dan Eggen reports for The Washington Post: “The new figures underscore a long-standing trend of wealth accumulation in Congress, which is populated overwhelmingly with millionaires and near-millionaires who often own multiple homes and other assets out of reach for most of the voters they represent.”

Many of our politicians live like kings. Chauffeured around in limousines, flying in private jets and eating gourmet meals, all paid for by the American taxpayer, they are far removed from those they are supposed to represent. Such a luxurious lifestyle makes it difficult to identify with the “little guy”–the roofers, plumbers and blue-collar workers who live from paycheck to paycheck and keep the country running with their hard-earned dollars and the sweat of their brows.

The unfortunate but simple fact is that the rich sit perched at the top of the government. As Joseph Stiglitz writes for Vanity Fair:

Virtually all U.S. senators, and most of the representatives in the House, are members of the top 1 percent when they arrive, are kept in office by money from the top 1 percent, and know that if they serve the top 1 percent well they will be rewarded by the top 1 percent when they leave office. By and large, the key executive-branch policymakers on trade and economic policy also come from the top 1 percent. When pharmaceutical companies receive a trillion-dollar gift–through legislation prohibiting the government, the largest buyer of drugs, from bargaining over price–it should not come as cause for wonder. It should not make jaws drop that a tax bill cannot emerge from Congress unless big tax cuts are put in place for the wealthy. Given the power of the top 1 percent, this is the way you would expect the system to work.

Sadly, electoral politics have been so thoroughly corrupted by corporate money that there is little chance, even for a well-meaning person, to affect any real change through Congress. Whether it be the Oval Office or the halls of Congress, the road to the ballot box is an expensive one, and only the wealthy, or those supported by the wealthy, are even able to get to the starting line.

Just consider the 2012 presidential election cycle. Both parties spent $1 billion each attempting to get their candidate elected to the presidency. This money came from rich donors and corporate sponsors, intent on getting their candidate in office. Once in office, these already privileged wealthy bureaucrats enter into a life of even greater privilege, unfortunately at the expense of the American taxpayer. It doesn’t even seem to matter whether they’re Democrats or Republicans–they all take full advantage of what one news report described as “a mountain of perks that most Fortune 500 companies couldn’t begin to rival.”

Even President Obama’s closest advisers are millionaires, including those on his 15-member cabinet. It is not unusual for some of them to own vacation homes, such as Kathleen Sebelius, secretary of Health and Human Services, who owns a “summer home worth more than a million dollars.

And then there are the lobbyists, the source of much corruption and exchanging of money in Washington. With an estimated 26 lobbyists per congressman, it should come as no surprise that once elected, even those with the best of intentions seem to find it hard to resist the lure of lobbyist dollars, of which there are plenty to go around.

This lobbying is in turn buoyed by a congressional lifestyle which demands that our representatives spend the majority of their time fund raising for campaigns, rather than responding to the needs of their constituents. In November 2012, the Democratic House leadership offered a model daily schedule to newly elected Democrats which suggests a ten-hour day, five hours of which are dominated by “call time” and “strategic outreach,” including fund raisers and correspondence with potential donors. Three or four hours are for actually doing the job they were elected to do, such as attending committee meetings, voting on legislation, and interacting with constituents.

When half of one’s time is devoted to asking for money from rich individuals and special interests, there is no way that he can respond to the problems which pervade the country. Even well-meaning Congressmen face a Catch-22 where they are pushed to fundraise to secure their seats, but then once in office, it is basically impossible for them to do their jobs. The full ramifications of this are laid out by Rep. Brad Miller (D-NC):

Any member who follows that schedule will be completely controlled by their staff, handed statements that their staff prepared, speaking from talking points they get emailed from leadership… It really does affect how members of Congress behave if the most important thing they think about is fundraising. You end up being nice to people that probably somebody needs to be questioning skeptically… You won’t ask tough questions in hearings that might displease potential contributors, won’t support amendments that might anger them, will tend to vote the way contributors want you to vote.

What we are faced with is a government by oligarchy–in other words, one that is of the rich, by the rich and for the rich. Yet the Constitution’s Preamble states that it is “we the people” who are supposed to be running things. If our so-called “representative government” is to survive, we must first wrest control of our government from the wealthy elite who run it. That is a problem with no easy solutions, and voting is the least of what we should be doing.

“What they don’t want,” noted comedian George Carlin, is “a population of citizens capable of critical thinking. They don’t want well-informed, well-educated people capable of critical thinking. They’re not interested in that. That doesn’t help them. That’s against their interests.”

A population of citizens capable of critical thinking? That’s a good place to start, and it’s a sure-fire way to jumpstart a revolution. As Abraham Lincoln said, “Wise men established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and the pursuit of happiness, their posterity should look up again at the Declaration of Independence and take courage to renew the battle which their fathers began.”

Inspiring words, but what do they really mean for those of us laboring under the weight of an overreaching, militarized, corrupt government that grows increasingly so with each passing day?

How can we change this state of affairs? The government is too big, too powerful, and its overlords too entrenched to willingly give up any of its power or wealth. The wisest option is to employ the tactics of past protest movements such as the Bonus Army, the Civil Rights Movement, and the 1960s anti-war movement, all of which used sleep-ins, sit-ins and marches to oppose government policies, counter injustice and bring about meaningful change.

For example, in May of 1932, more than 43,000 people, dubbed the Bonus Army—World War I veterans and their families—marched on Washington. Out of work, destitute and with families to feed, more than 10,000 veterans set up tent cities in the nation’s capital and refused to leave until the government agreed to pay the bonuses they had been promised as a reward for their services. The Senate voted against paying them immediately, but the protesters didn’t budge. Congress adjourned for the summer, and still the protesters remained encamped. Finally, on July 28, under orders from President Herbert Hoover, the military descended with tanks and cavalry, beating some protesters senseless and setting their makeshift camps on fire. Still, the protesters returned the following year, and eventually their efforts not only succeeded in securing payment of the bonuses but contributed to the passage of the G.I. Bill of Rights.

Similarly, the Civil Rights Movement mobilized hundreds of thousands of people to strike at the core of an unjust and discriminatory society. Likewise, while the 1960s anti-war movement began with a few thousand perceived radicals, it ended with hundreds of thousands of protesters, spanning all walks of life, demanding the end of American military aggression abroad.

What these movements had was a coherent message, the mass mobilization of a large cross section of American society, what Martin Luther King Jr. called a philosophy of “militant nonviolent resistance” and an eventual convergence on the nation’s seat of power—Washington, DC—the staging ground for the corporate coup, where the shady deals are cut, where lobbyists and politicians meet, and where corporate interests are considered above all else.

It is no coincidence that just prior to his assassination in April 1968, King was plotting “to build a shantytown in Washington, patterned after the bonus marches of the thirties, to dramatize how many people have to live in slums in our nation.”

King’s advice still rings true: “We need to put pressure on Congress to get things done. We will do this with First Amendment activity. If Congress is unresponsive, we’ll have to escalate in order to keep the issue alive and before it. This action may take on disruptive dimensions, but not violent in the sense of destroying life or property: it will be militant nonviolence.”

The balance of power that was once a hallmark of our republic no longer exists. James Madison’s warning that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny” has, regrettably come to pass.

Clearly, it’s time for a mass movement dedicated to change through “militant nonviolence.” If not, the shadow of tyranny that now hangs over us will eventually destroy every last semblance of freedom.

“We know through painful experience that freedom is never voluntarily given by the oppressor,” Martin Luther King Jr. warned in his “Letter from a Birmingham Jail.” “It must be demanded by the oppressed.” — John W. Whitehead

In a devastating ruling handed down in Maryland v. King, a divided U.S. Supreme Court has approved the practice by police of forcefully obtaining DNA samples from individuals arrested for serious crimes, even though they are presumed innocent, without first obtaining a search warrant.

Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living. As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that “today’s incursion upon the Fourth Amendment” will someday be repudiated.

As Justice Antonin Scalia, writing for the dissent, points out, the Court’s ruling succeeds only in burdening “the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” Moreover, if such a dubious practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify the “taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.”

In 2009, Maryland police arrested Alonzo Jay King Jr. on charges of assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, police carried out a cheek swab on King to obtain his DNA profile without first procuring a warrant. The DNA sample was then matched up against a database which identified him as having allegedly been involved in a 2003 rape. King was then convicted of the 2003 crime. On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.”

In agreeing to hear the case, the Supreme Court was asked to determine whether the Fourth Amendment allowed law enforcement officials to collect DNA from people who have merely been arrested and so are presumed innocent. Yet  the Court’s subsequent 5-4 ruling which equates forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” further guts an already severely disemboweled Fourth Amendment. Justices Anthony Kennedy, John Roberts, Clarence Thomas, Stephen Breyer and Samuel Alito affirmed the practice of warrantless DNA grabs by the police. Issuing a strongly worded dissent were Justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The Supreme Court’s ruling in Maryland v. King is available at http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf.

For more on these issues, read my new book A Government of Wolves: The Emerging American Police State which paints a chilling portrait of a nation in the final stages of transformation into a police state, complete with surveillance cameras, drug-sniffing dogs, SWAT team raids, roadside strip searches, blood draws at DUI checkpoints, mosquito drones, tasers, privatized prisons, GPS tracking devices, zero tolerance policies, overcriminalization, and free speech zones.

“Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive.”—C.S. Lewis

Caught up in the televised drama of a military-style manhunt for the suspects in the Boston Marathon explosion, most Americans fail to realize that the world around them has been suddenly and jarringly shifted off its axis, that axis being the U.S. Constitution.

For those like myself who have studied emerging police states, the sight of a city placed under martial law—its citizens under house arrest (officials used the Orwellian phrase “shelter in place” to describe the mandatory lockdown), military-style helicopters equipped with thermal imaging devices buzzing the skies, tanks and armored vehicles on the streets, and snipers perched on rooftops, while thousands of black-garbed police swarmed the streets and SWAT teams carried out house-to-house searches in search of two young and seemingly unlikely bombing suspects—leaves us in a growing state of unease.

Mind you, these are no longer warning signs of a steadily encroaching police state. The police state has arrived.

Equally unnerving is the ease with which Americans welcomed the city-wide lockdown, the routine invasion of their privacy, and the dismantling of every constitutional right intended to serve as a bulwark against government abuses. Watching it unfold, I couldn’t help but think of Nazi Field Marshal Hermann Goering’s remarks during the Nuremberg trials. As Goering noted:

It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.

As the events in Boston have made clear, it does indeed work the same in every country. The same propaganda and police state tactics that worked for Adolf Hitler 80 years ago continue to be employed with great success in a post-9/11 America.

Whatever the threat to so-called security—whether it’s rumored weapons of mass destruction, school shootings, or alleged acts of terrorism—it doesn’t take much for the American people to march in lockstep with the government’s dictates, even if it means submitting to martial law, having their homes searched, and being stripped of one’s constitutional rights at a moment’s notice.

As journalist Andrew O’Hehir observes in Salon:

In America after 9/11, we made a deal with the devil, or with Dick Cheney, which is much the same thing. We agreed to give up most of our enumerated rights and civil liberties (except for the sacrosanct Second Amendment, of course) in exchange for a lot of hyper-patriotic tough talk, the promise of “security” and the freedom to go on sitting on our asses and consuming whatever the hell we wanted to. Don’t look the other way and tell me that you signed a petition or voted for John Kerry or whatever. The fact is that whatever dignified private opinions you and I may hold, we did not do enough to stop it, and our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

Particularly disheartening is the fact that Americans, consumed with the need for vengeance, seem even less concerned about protecting the rights of others, especially if those “others” happen to be of a different skin color or nationality. The public response to the manhunt, capture and subsequent treatment of brothers Tamerlan and Dzhokhar Tsarnaev is merely the latest example of America’s xenophobic mindset, which was also a driving force behind the roundup and detention of hundreds of Arab, South Asian and Muslim men following 9/11, internment camps that housed more than 18,000 people of Japanese ancestry during World War II, and the arrest and deportation of thousands of “radical” noncitizens during America’s first Red Scare.

Boston Marathon bomber suspect Dzhokhar Tsarnaev

Moreover, there has been little outcry over the Obama administration’s decision to deny 19-year-old U.S. citizen Dzhokhar Tsarnaev his due process rights and treat him as an enemy combatant, first off by interrogating him without reading him his Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”).

Presently, under the public safety exception to the Miranda rule, if law enforcement agents believe a suspect has information that might reduce a substantial threat, they can wait to give the Miranda warning. For years now, however, the Obama administration has been lobbying to see this exception extended to all cases involving so-called terror suspects, including American citizens. Tsarnaev’s case may prove to be the game-changer. Yet as journalist Emily Bazelon points out for Slate: “Why should I care that no one’s reading Dzhokhar Tsarnaev his Miranda rights? When the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us.”

The U.S. Supreme Court rightly recognized in its 1966 ruling in Miranda v. Arizona that police officers must advise a suspect of his/her civil rights once the suspect has been taken into custody, because the police can and often do take advantage of the fact that most Americans don’t know their rights. There have been few exceptions to the Miranda rule over the last 40 years or so, and with good reason. However, if the Obama administration is allowed to scale back the Miranda rule, especially as it applies to U.S. citizens, it would be yet another dangerous expansion of government power at the expense of citizens’ civil rights.

This continual undermining of the rules that protect civil liberties, not to mention the incessant rush to judgment by politicians, members of the media and the public, will inevitably have far-reaching consequences on a populace that not only remains ignorant about their rights but is inclined to sacrifice their liberties for phantom promises of safety.

Moments after taking Tsarnaev into custody, the Boston Police Dept. tweeted “CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won.” Yet with Tsarnaev and his brother having been charged, tried and convicted by the government, the media and the police—all without ever having stepped foot inside a courtroom—it remains to be seen whether justice has indeed won.

The lesson for the rest of us is this: once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny. And it doesn’t really matter whether it’s a Democrat or a Republican at the helm, because the bureaucratic mindset on both sides of the aisle now seems to embody the same philosophy of authoritarian government. Increasingly, those on the left who once hailed Barack Obama as the antidote for restoring the numerous civil liberties that were lost or undermined as a result of Bush-era policies are finding themselves forced to acknowledge that threats to civil liberties are worse under Obama.

Clearly, the outlook for civil liberties under Obama grows bleaker by the day, from his embrace of indefinite detention for U.S. citizens and drone kill lists to warrantless surveillance of phone, email and internet communications, and prosecutions of government whistleblowers. Most recently, capitalizing on the nation’s heightened emotions, confusion and fear, government officials used the Boston Marathon tragedy as a means of extending the reach of the police state, starting with the House of Representatives’ overwhelming passage of the controversial Cyber Intelligence Sharing and Protection Act (CISPA), which opens the door to greater internet surveillance by the government. 

House of Representatives passes CISPA in the wake of Boston Marathon explosions.

These troubling developments are the outward manifestations of an inner, philosophical shift underway in how the government views not only the Constitution and the Bill of Rights, but “we the people,” as well. What this reflects is a move away from a government bound by the rule of law to one that seeks total control through the imposition of its own self-serving laws on the populace.

All the while, the American people remain largely oblivious to the looming threats to their freedoms, eager to be persuaded that the government can solve the problems that plague us—whether it be terrorism, an economic depression, an environmental disaster or even a flu epidemic. Yet having bought into the false notion that the government can ensure not only our safety but our happiness and will take care of us from cradle to grave—that is, from daycare centers to nursing homes, we have in actuality allowed ourselves to be bridled and turned into slaves at the bidding of a government that cares little for our freedoms or our happiness. — John W. Whitehead

In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court has concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers in the course of their employment. The Court’s ruling dovetails with arguments put forward by The Rutherford Institute in its amicus brief, which urged the Court to enforce the plain meaning of federal statutes allowing citizens to sue the government for injuries intentionally inflicted by law enforcement officers.

In striking down lower court rulings, the justices held that the courts had erred in dismissing a prisoner’s lawsuit alleging that three prison guards had brutally and sexually assaulted him. The lower courts justified their ruling under the Federal Tort Claims Act (FTCA), which allows individuals to sue the government for misconduct by law enforcement officials only if the injury inflicted occurs while the officers are in the course of making an arrest or seizure, or executing a search. In their amicus brief, Rutherford Institute attorneys asked the Supreme Court to protect citizens from government brutality by eliminating the restriction on government liability.

Hopefully, the Supreme Court’s ruling in Millbrook will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees—whether they’re police officers or prison guards—and holding them accountable to respecting citizens’ rights, especially while on the job. At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, this ruling is at least an encouraging glimmer in the gloom.

In 1948 Congress enacted the Federal Tort Claims Act (FTCA) to provide a limited waiver of “sovereign” immunity for the negligent acts of government agents, despite the fact that the United States is generally not liable for injuries to persons caused by the negligent or intentional acts of government employees and agents. The original version of the FTCA preserved government immunity for “intentional torts” such as assault, battery and false imprisonment.  However, in 1974, Congress amended the FTCA to allow the government to be sued for intentional torts by “law enforcement officers.”

In 2011, Kim Millbrook, a prisoner at a federal penitentiary in Lewisburg, Pennsylvania, filed an FTCA lawsuit against the United States alleging that three prison guards had brutally assaulted him in the basement of the prison, forcibly restraining Millbrook and forcing him to perform oral sex. Millbrook’s lawsuit was dismissed by a federal district court which ruled that the 1974 amendment to the FTCA allowing for intentional tort claims against law enforcement officers only applies to acts that occur during searches, while seizing evidence, or while making arrests. The district court’s decision was affirmed on appeal to the U.S. Court of Appeals for the Third Circuit, which, relying on prior rulings from the circuit, held that because the 1974 amendment defines “law enforcement officers” as officers “empowered by law to execute searches, to seize evidence, or to make arrests,” the scope of the waiver of immunity for intentional torts applies only where the harmful act occurs in the course of one of those three duties. The U.S. Supreme Court rejected this interpretation, noting that the plain language of the law does not restrict the waiver of immunity to acts that occur during searches, seizures, and arrests. — John W. Whitehead