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There are people in America that believe that if the election for the President in 2008 does not go to the Republicans then President Bush will “cancel” the elections in one fashion or another. Consider the following YouTube video

Here the poster brings about all sorts of arguments that elements which President Bush and the Republicans have put into place will allow him to suspend the Constitution and cancel the results of the election. Personally, I think this is very far-fetched and that Bush and his cohorts would have more to lose by trying such a tactic. However, don’t think that Bush has much respect for the Constitution. Consider back in 2005 it was reported in the Capitol Hill Blue that when the Patriot Act was up for renewal an argument ensued between President Bush and Congressional GOP leaders. As told by Doug Thompson of Capitol Hill Blue

GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.

“I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”

“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”

“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!” (emphasis added)

(Thompson, Doug, “Bush on the Constitution: A ‘goddamned piece of paper’“, Capitol Hill Blue, December 5, 2005)

So, a document which George W. Bush has sworn to uphold, a document that has defined the basis for the law of this land for over two centuries, a document which has withstood the challenges faced by Lincoln during the Civil War and Roosevelt during the Great Depression…this document…the U.S. Constitution…is nothing more than a “gaddamned piece of paper” to George W. Bush.

When I think about this sort of perspective by the highest government official in the U.S. it makes me shudder. Here’s a document that represents and defines our system of government and is the very foundation for our government and George W. Bush shows such derision and disrespect for it. How this man ever got to be President of the United States is beyond me. It is time to make a change…we need to make sure President Bush, Vice President Cheney, the Republicans and their cohorts understand that you cannot take the Constitution for granted and you cannot actively work to undermine the rights and liberties that are guaranteed by it. It is time to vote these people out of office and return our government to what it should be — a “government of the people, by the people, for the people” (Lincoln, Abraham, “Gettysburg Address“, November 19 1863)

“Justice will only exist where those not affected by injustice are filled with the same amount of indignation as those offended” – Plato

I am considerably bothered by the recent conviction of Salim Hamdan by the military tribunal in Guantanamo Bay. The tribunal found Mr. Hamdan guilty of material support of Al Qaeda by working as Osama bin Laden’s driver in Afghanistan where Mr. Hamdan was captured in 2001. He’s been sitting in Guantanamo Bay’s prison for the past 6 years and has finally had his day in court — where, predictably, he was found guilty. Why predictably? Well it all goes down to the testimony of the former chief prosecutor for these commission trials – Air Force Colonel Morris Davis.

During the trial of Mr. Hamdan, Col. Davis acted as a witness for the defense. Col. Davis noted significant flaws in the whole process as well as potential impropriety. One of the most scathing accusations is his testimony of a meeting between himself and Department of Defense General Counsel William Haynes when Col. Davis interviewed for the Chief Prosecutor position in August of 2005. During the interview Col. Davis told Mr. Haynes that

the military commission trials “are historic. These trials will be the Nuremburg of our time. If there are some acquittals that would perhaps not be a bad thing.” Col. Davis says Mr. Haynes became visibly agitated at the mention of acquittals and stated: “We can’t have acquittals. We’ve been holding these guys for years. We can’t have acquittals. We’ve got to have convictions.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Col. Davis also wrote an editorial in the Los Angeles Times back in December of 2007 in which he noted that the Convening Authority, a political appointee with no equivalent in the civilian court system here in the U.S. and who is supposed to be objective, was actually showing partiality to the prosecution. The convening authority makes many important decisions during the tribunal process such as which charges filed by the prosecution go to trial and which are dismissed, choosing who serves on the jury, and deciding whether to approve requests for experts and reassessing findings of guilt and sentences. (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007) In the case of the military tribunals at Guantanamo Bay, Col. Davis wrote in his editorial that Major General John Altenburg, acting as the convening authority, kept his distance from the prosecution to preserve the authority’s impartiality. However, Susan Crawford, who was appointed by the Secretary of Defense to replace Maj. Gen. Altenburg,

had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

Col. Davis lists out other reasons for his resignation as the Chief Prosecutor at the military tribunals in Guantanamo Bay. These include the fact that the trials were being held behind closed doors and noted that “even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors,” “Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent,” and that “transparency is critical.” (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007). Finally, Col. Davis cites the fact that he was placed in a chain of command under Department of Defense General Counsel William J. Haynes who is controversial for the fact that he authorized the use of the aggressive interrogation techniques that could be considered torture. Col. Davis notes

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

I don’t question that Mr. Hamdan was Osama bin Laden’s driver in Afghanist. But the experience of Col. Davis and how the administration found significant political value in the military tribunals makes me question their impartiality and the possiblity of true justice being served.

Not only were administration officials concerned about winning convictions, but according to Col. Davis, various officials also saw political value in filing charges before the mid-term and presidential elections. At a meeting in September 2006, Col. Davis says Deputy Secretary of Defense Gordon England told him that “there could be some really strong political value in charging some of the high value detainees before the election.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Mr. Hamdan was found guilty of the lesser charge material support of terrorism or a terrorist organization and the jury sentenced him to 66 months. With credit for time served he could be released before the end of this year. However, NPR’s John McChesney reported that despite the fact that Mr. Hamdan will have served his time in prison by the end of this year, the government may still decide to continue to hold him. (“U.S. Could Continue Holding bin Laden Driver“, NPR, August 8 2008 ) To do this the government would simply classify him as an enemy combatant. If that were to happen then justice in this country will have received a terrible blow. Our system is based on the concept that once a prisoner has served his sentence then for what he was convicted they are entitled to be set free. They have, in essence, paid their debt. But to continue holding someone in prison for an indeterminate time after their punishment has been completed could be a violation of their human rights as well as our own Constitution’s injunction on cruel and unusual punishment. This process will end up bringing us down to the level of the China or Myanmar in terms of human rights abuse and will result in significant loss of our moral authority. We must make sure that Justice, not just for Mr. Hamdan but for all those undergoing trial in Guantanamo Bay, is delivered fairly and impartially. Remember, Justice is supposed to be blind.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” — Benjamin Franklin

As if the airlines and TSA haven’t made traveling hard enough for the leisure or business traveler it has now become even harder. The Washington Post reported on August 1st in their article, Travelers’ Laptops May Be Detained At Border :

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

(Nakashima, Ellen, Travelers’ Laptops May Be Detained At Border, The Washington Post, August 1, 2008 )

These policies apply to anyone entering the country through any means — not just at airports but at border crossings from Canada, Mexico, or at seaports throughout the United States. The search and seizure can occur without any probably suspicion by the officials and the items taken can be held for an indefinite period of time. Laptops are not the only items that can be taken for examination

international travelers have reported that their laptops, cellphones and other digital devices had been taken — for months, in at least one case — and their contents examined.

The policies state that officers may “detain” laptops “for a reasonable period of time” to “review and analyze information.” This may take place “absent individualized suspicion.”

The policies cover “any device capable of storing information in digital or analog form,” including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover “all papers and other written documentation,” including books, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’ ”

(Nakashima, Ellen, Travelers’ Laptops May Be Detained At Border, The Washington Post, August 1, 2008 )

What this means is that even your personal diary can be taken and examined by DHS at their discretion even though you may have no connection to terrorism, narcotics trafficking, child pornography or any other of a multitude of crimes. What would be interesting is if someone writes in a diary that confesses to a lessor crime – say cheating on their federal taxes – and this is discovered during one of these inspections that apparently would be actionable. According to the policies released by DHS on July 16 2008 the

examinations of documents and electronic devices are a crucial tool for detecting information concerning terrorism, narcotics smuggling, and other national security matters; alien admissibility; contraband including child pornography, monetary instruments, and information in violation of copyright or trademark laws; and evidence of embargo violations or other import or export control laws.

(Department of Homeland Security, “Policy Regarding Border Search of Information“, July 16 2008, as found on the Center for Democracy and Technology‘s website)

As can be seen from this excerpt, any infraction found by DHS can be actionable — whether it is something major like information related to terrorism or something minor like a confession in a diary that you feel like you may have cheated on your taxes or ran a red light. This policy appears to be in violation of the 4th amendment of the U.S. Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The U.S. 9th Circuit Court of Appeals ruled in the case of U.S. v. Arnold that searches of laptops at the border without reasonable suspicion does not constitute a violation of the 4th amendment because the laptop is considered a “closed container” and the U.S. courts have long held that “searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment” (United States v. Arnold, No. 06-50581,(9th Cir April 21, 2008 )). Previous court rulings have allowed for the searches of briefcases and luggage, purses, wallets, pockets, pictures, films and other graphic materials when these items cross the border.

However, while this may not be a violation of a person’s 4th amendment, the fact remains that such unwarranted searches are a violation of their privacy. Officially, the items gathered by the Customs and Border Patrol (CBP) agents during such a search can be held for further inspection for a “reasonable period.” The policies do not specify any specific length of time. The policies do, however, specify that if no reasonable suspicion is found then the information gathered must be destroyed. However, in section B of the policy it states “Nothing in this policy limits the authority of an officer to make written notes or reports or to document impressions relating to a border encounter.”
(Department of Homeland Security, “Policy Regarding Border Search of Information“, July 16 2008, as found on the Center for Democracy and Technology‘s website).

So, if you’re a business person and you are traveling with confidential information, a CBP agent can inspect your documents or your laptop, make notes of what they find, and then return your documents to you. If they make copies of the documents, then, when the search is concluded, those copies must be destroyed but the notes they take do not have to be destroyed. Additionally, CBP can share the information they copy with other agencies and the policy does not require those other agencies to destroy their copies of the information gathered even if CBP determines that there is no probable cause. Now, the information they gather must be handled properly — especially in cases of business confidential information and other similar documents. However, the fact that any border agent can rifle through your personal notes and diary looking for anything leaves the distasteful feeling that the 4th amendment is quickly being chipped away by the government in the name of fighting terrorism. Remember that the next time you travel outside the United States — just leave that manuscript for your novel at home.

Note: See here for how to try and protect your personal information when traveling overseas.

March 2020

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