“Until they became conscious they will never rebel, and until after they have rebelled they cannot become conscious… The Party seeks power entirely for its own sake. We are not interested in the good of others; we are interested solely in power, pure power.” Orwell’s 1984.
If we are not protected from “covert surveillance,” our freedom is at risk because there are so many ulterior motives for such surveillance and potential for abuse. In the name of “law and order,” Attorney General Barr announced that the feds would conduct “covert surveillance” of those protesting George Floyd’s death. A clear contradiction in terms if there ever was one.
In a tweet, Trump designated Antifa as a “domestic terrorist organization.” But many say this has no legal significance or consequence because there are no criminal statutes that prohibit a person for being a so-called “domestic terrorist,” regardless if self-proclaimed or designated by the government. (https://www.nytimes.com/2020/05/31/us/politics/trump-antifa-terrorist-group.html)
Government can punish someone for committing criminal acts of violence, but not for their thoughts alone. There is good reason for not having such laws. Labeling someone a “domestic terrorist” and seek to punish a person for merely being labeled a “domestic terrorist” has serious First Amendment and freedom of association implications. If the government can punish someone for a label imposed on him or her by the government, then Due Process and the First Amendment are dead. Prosecutors may simply argue strawman or ad hominem rather than facts to obtain convictions.
The government is not allowed to break the law and ignore the Constitution even if it is targeting those with vile and hateful thoughts and expressions of those thoughts. In constitutional law, the end can never justify the means. A free society cannot allow it. “Hate speech” is protected by the First Amendment. The remedy for hate speech “is more speech, not enforced silence,” as said by Justice Brandeis many years ago in his concurrence in Whitney v. California, 274 U.S. 357 (1927).
The FBI, with its poor history of abusive surveillance, prohibits its agents from surveilling Americans for merely expressing their views, even if they communicate extremist propaganda. (https://www.cbsnews.com/news/what-is-domestic-terrorism-understanding-law-and-fbi-definitions-terrorist-activity-in-the-united-states/) Again, there is good reason for this. Speech is not evidence of a crime, even hate speech. Thus, there is no justification for the invasion of a person’s right to privacy. Surveillance based on someone’s thoughts is sinister with ulterior motives.
Of course, there is an exemption. “Fighting words” are exempted from First Amendment protection. (https://www.cato.org/blog/fighting-words-free-speech) The United States Supreme Court found a distinction between “hate speech” and “fighting words.” The former is deserving of protection while the latter is not protected. The distinction seems to depend on whether the speech is in the abstract or a “direct personal insult.” It should be noted that subsequent case law has limited the “fighting words” exemption. But, even if someone uttered “fighting words,” it would not warrant lawful surveillance of that person.
So even with these broad First Amendment protections as the backdrop, Barr still broadcasted to the world that the federal government will engage in “covert surveillance” of those protesting George Floyd’s murder. (https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-brutality-protests-government) The two-page document from the DOJ regarding this surveillance is linked in the Buzzfeed article. “Covert surveillance” is not defined by the DOJ document. But, clearly, it is unconstitutional. Barr cannot issue secret warrants to allow the surveillance of American citizens.
However, the law has not deterred the government from taking unlawful action before. So what type of surveillance will the feds do? Barr’s recruitment of the DEA tells us what type. It is the wiretapping of protestors’ cell phones and other electronic communications. The DEA has an unsavory history regarding illegal wiretapping surveillance. The feds and state officials conspired to engage in trickery to evade privacy protections imposed by Congress’ Wiretap Act. Drug trafficking cases always start with a wiretap. The DEA is well versed with wiretaps and known for playing loose and fast with the rules protecting privacy. (https://www.usatoday.com/story/news/2015/11/19/riverside-county-wiretaps-violated-federal-law/76064908/ see also https://www.desertsun.com/story/news/2016/02/25/dea-riverside-wiretaps-scaled-back/80891460/?from=global&sessionKey=&autologin=) Before there was the National Security Agency (NSA,) there was the DEA Data Collection Program. NSA, actually, modeled their data collection program after the DEA’s program. (https://www.alec.org/article/dea-data-collection-program-served-as-model-for-nsa-program/)
Our country has an ugly history of surveillance of its own citizens and destroying the lives of many. Dr. Martin L. King, Jr. and other civil rights leaders were targeted by the FBI in an effort to destroy them and their reputations. (https://www.thedailybeast.com/the-fbis-war-on-civil-rights-leaders?ref=scroll) When the surveillance did not reveal any criminal wrongdoing, FBI would still try to ruin these leaders reputations with communist labels and justify further unlawful surveillance.
In the 1950s, Senator McCarthy resurrected the “Salem witch trials” in America. He had a list. He said his list contained the names of American communists who were a threat to America. (https://www.history.com/topics/cold-war/joseph-mccarthy) Typical vague aspersions of psychological projection by McCarthy. He was the actual threat to America.
Even if these people were communists, communists, and all other creeds for that matter, have a fundamental and inalienable right of association. This fundamental right was recognized by United States Supreme Court in NAACP v. Alabama, 357 U.S. 449 (1958). Justice Harlan wrote, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” Notwithstanding, this axiomatic jurisprudence. McCarthy was still able to ruin many lives with mere allegations and aspersions without any evidence of criminality or treason.
This was a dark time for our government. And sadly, McCarthyism appears to be making an ugly comeback. We cannot allow the government to punish people for their thoughts or for labels assigned by the government. If this is allowed, then we do not have a republic. It is not a crime to believe in anarchy, communism, or even fascism. Thought is not a crime. If you believe it is a crime, then you do not deserve a republic. The Constitution only permits punishment of acts, not of thoughts.
This neo-McCarthyism plays well with the “law and order” crowd. But it serves another nefarious purpose. Barr’s public announcement of “covert surveillance” of the protestors is intended to act as an unlawful “prior restraint” upon the protestors’ free speech. (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2658&context=lcp#:~:text=In%20constitutional%20terms%2C%20the%20doctrine,the%20boundaries%20of%20that%20Amendment.) Prior restraints prevent the speech from even occurring. They are unconstitutional. The threat of “covert surveillance” by the DEA is intended to deter and intimidate those from expressing their opposition to police brutality in the public forum; thus, preserving the status quo, preserving power.
This begs the question. You obtain law and order with unlawful acts of preventing the exercise of the rights of association, assembly, and speech? Illogical. This is not law and order. It is one thing when the citizen is a criminal. His victims are limited to those within the reach of his acts. But when the government is the criminal, we, the people, are the victims.
Regardless of the reason for this neo-McCarthyism, the police are more than happy to play along because it gives them more power and justifies their existence. When rights of privacy are not respected, the police play fast and loose with our liberty.
It is such a silly thing when people say “if you have nothing to hide, you’ve got nothing to fear” from the government. Yes, you do. It is called “testilying.” Police perjury. “Testilying” was coined over 25 years ago from the rampant practice of police perjury. (https://www.nytimes.com/1994/04/22/us/new-york-police-often-lie-under-oath-report-says.html?pagewanted=all) Why do police testilie? For some, it is probably some type of psychopathy to satisfy deviant sadist urges in destroying the lives of innocent people. (https://www.businessinsider.com/professions-with-the-most-psychopaths-2018-5#10-civil-servant-1) For others, “testilying” leads to career advancement. With it, officers can rise in the ranks of the department with virtually no risk of punishment if caught. Cop’s conviction tally determines his or her promotions. So why let the truth get in the way of career advancement?
There are many instances where judges have dismissed criminal cases because police officers perjured themselves. Yet many of these officers still make detective and other leadership positions. (https://www.nytimes.com/2018/03/19/nyregion/new-york-police-perjury-promotions.html) What a horrible message this sends to new recruits.
As one cop put it, “you take the truth and stretch it out a little bit.” (https://www.nytimes.com/2018/03/18/nyregion/testilying-police-perjury-new-york.html) This is the danger of “covert surveillance.” They can take a kernel of truth, such as your whereabouts or who you communicated with, and then compose a fictional novel of your criminal wrongdoing in their police reports. And this police fiction appears credible because it contains kernels of truth that serves as a baseline or foundation for the work of fiction. Even innocent or innocuous acts can be spun by cops into nefarious acts by these simple words: “based on my training and experience I formed the opinion that criminal activity was afoot.” Even innocent statements are not safe from police overreach and spin with these magical words of transformation: “statements by the suspect were street vernacular designed to evade detection.” If the police track your whereabouts, communications, and with who, it does not take much with a little creativity to manufacture a crime.
The irony is that Barr knows the dangers of the surveillance state with his opposition to the renewal of FISA. (https://www.npr.org/2020/05/27/863112311/surveillance-bill-once-again-tripped-up-with-new-opposition-from-justice-departm) It does not matter if it’s Big Brother on the left or the right. Big Brother is a cancer to liberty because there are so many ulterior motives to surveil Americans that have nothing to do with actual crime fighting.