Monday, August 31, 2009

Laptop Searches

Laptop Searches -- The Disastrous End to the Arnold Case and the Disappointing New Start by the Obama Administration

The Arnold case

In April, 2008, I commented on the Ninth Circuit's decision in United States v. Arnold holding, in effect, that laptops may be searched at the U.S. border even though the customs agent has no reasonable suspicion that the traveler in question has illegal data stored on the device. See, this link. (In this context, "laptop" includes iPhones, Blackberries, iPods, conventional mobile phones, memory sticks, external hard drives, CD's, digital cameras, and all other digital devices capable of storing information.)

Arnold thereupon petitioned the U. S. Supreme Court for a writ of certiorari, that is for review of the Ninth Circuit's decision, there being no appeal as of right to the Supreme Court in such a case.

On February 23 of this year Arnold's legal counsel was notified by the Supreme Court that Arnold's petition for a writ of certiorari had been denied. Two days later Michael Arnold committed suicide. See the Declaration of Marilyn E. Bednarski in support of her motion to de-publish the Ninth Circuit decision following Mr. Arnold's death (the motion was denied).

The case and Mr. Arnold's life thereby came to an end, but the regrettable law created by the Ninth Circuit in Mr. Arnold's case lives on and is now the leading opinion in the law of border searches of laptops. As a result, at the U.S. border the Fourth Amendment prohibition of unreasonable searches and seizures, the former rule of reasonable suspicion, and all other rules regulating or restraining the suspicions, curiosities, prejudices and whimsies of customs agents are nullified and the Customs and Border Protection (CBP) service and its companion agency, the U.S. Immigration and Customs Enforcement (ICE) branch, may search whatever laptops they please, whenever they please and for whatever reasons they please, or for no reason at all. It is open season on your laptop at the U.S. border.

In this context it is well to remember what the CBP itself says on its website about how it decides who to search:
Please be aware, some of CBP's biggest seizures have come from inspections of "respectable looking" people, such as grandmothers, corporate executives, college professors, etc. Everyone is subject to a CBP inspection when they arrive in the U.S.
If our grandmothers are at risk of having their laptops searched, then so are the rest of us.

The Feinberg Senate Committee Hearings

On June 25, 2008, the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Committee, chaired by Senator Russ Feingold of Wisconsin, held a hearing on "Laptop Searches and Other Violation of Privacy Faced by Americans Returning from Overseas Travel."

A balanced panel of witnesses said predictable things pro and con about the CBP's border laptop search policies and practices, few of the committee members bothered to attend the hearing and the Department of Homeland Security, under whose umbrella the CBP and the ICE reside, boycotted the hearing altogether and refused to send a witness. It was well that Senator Feingold held the hearing and it may have served to raise the level of public consciousness about the issue, but the hearing itself was a non-event.

The New York Times Editorial

Following the Feingold committee hearing, on July 10, 2008, the New York Times published an important editorial captioned "The Government and Your Laptop."

The Times noted the policy of the Department of Homeland Security to routinely search laptops and had this scathing comment: These out-of-control searches trample the privacy rights of Americans, and Congress should rein them in.

The Times correctly perceived that a search of a laptop is fundamentally different from a search of a suitcase: [b]ecause of the enormous amount of private information people keep on their laptops, the searches are more akin to rifling through someone’s home and reading every letter, financial record and personal journal. Those of us who use laptops every hour of every day in our professional and private lives know exactly what the Times editorial board meant by this observation.

The Times went on to note the Arnold decision, which it characterized as "disappointing," and recommended that Congress enact legislation imposing a mandatory standard requiring that the CBP have "... a reasonable suspicion about the specific person being searched" before a laptop search is allowed.

As will be seen in the next chapter of this comment, the Times' appeal for a "reasonable suspicion" has not been heard by the Obama Department of Homeland Security.

Sunday, February 15, 2009

The Unconvincing Execution of Elias Syriani

I reported on November 19, 2005, on the sad, sad execution in North Carolina of Elias Syriani. Syriani had killed his wife in a rage and had been convicted and sentenced to death. The couple's four children, after years of understandable estrangement from their father, in due course reconciled with him and came to know and love him. As his execution date approached the children did everything possible to persuade the Governor of North Carolina, Mike Easley, to commute the sentence. They hired legal counsel, they met with Easley, and they took their appeal public with a dramatic appearance on the Larry King show. All to no avail -- Easley turned them down with a brief, cold, heartless statement that he could find "no convincing reason" to commute the death sentence. The decision was bad enough, but Easley's reliance on such a vacuous non-reason made it all the more gratuitously painful to the Syriani children. He might at least have had the decency to explain why the love of the man's four children and their desperate need to have their father stay alive for their sake was not a convincing reason.

Linda Booker, a North Carolina based filmmaker, has now produced, directed and released a moving documentary on the case entitled Love Lived on Death Row. The production was supported in part by the Southern Documentary Fund, a non-profit organization supporting documentary film projects about the American south. It documents a tense and tearful set of interviews, before and after the execution, with the Syriani children, their extraordinary lawyers, Henderson Hill and Russell Sizemore, Meg Eggleston, a woman who befriended Syriani and took up his cause, and Sister Helen Prejean, a Catholic nun, the author of Dead Man Walking, a nationally prominent advocate for the abolition of the death penalty. Unfortunately but predictably Mike Easley declined to be interviewed and to give the family and indeed the country the benefit of his view on why in this unique and compelling case this terrible execution had to go forward for no convincing reason. The trailer for the film appears above and can also be viewed on the film's website.

Thursday, February 12, 2009

Black Comedy at the Vatican

Bishop Richard Nelson Williamson

In one of the nuttiest acts to emanate from the Vatican in recent years the German pope has rehabilitated, rescued from excommunication and restored to Catholic hierarchical legitimacy a Holocaust denier. What next? Will the pope host Saturday Night Live?

The pope is of course his "holiness" Pope Benedict the Sixteenth, born in Bavaria 81 years ago, the former Archbishop of Munich. At the depth of the Holocaust he was sixteen years old...old enough, one would think. The Bishop is Richard Nelson Williamson, born in England and now 68 years old. He was of course a child during the Holocaust. He evidently remains a child, but an exceptionally malicious one.

The Bishop was excommunicated on July 1, 1988, by the head of the Congregation of Bishops in the Vatican. Pope John Paul II reaffirmed the excommunication the following day. In the following years the bishop went around like a loose cannon on the Catholic deck doing crazy things like ordaining a group of excommunicated Polish priests. But he owes his infamy not to that -- who really cares if a pack of unaccredited priests are running loose in the Polish countryside? -- but to his frequent and loud denial of the Holocaust.

In an extraordinary, too-good-to-be-true bit of timing Williamson reaffirmed his Holocaust denial in the most emphatic possible terms in an interview by Ali Fagan for Swedish public television conducted in Germany at Zaitzkofen Castle near Regensburg in November of 2008. A scant two months later, on January 21, 2009, the German pope "remitted" (the technical term) Williamson's excommunication. The Swedish television station saw its opening and released the Williamson interview the same day. A storm of outrage gathered and broke over the Vatican. Having none, the Vatican and the pope have been unable to offer a sensible explanation for this bit of unprovoked madness. The Vatican Secretariat of State now claims that Williamson's Holocaust denials were "unknown to the Holy Father at the time he revoked the excommunication." In other words, the pope is in the same position as an investor in the Bernie Madoff fund -- he simply did not do his own due diligence but relied instead on the assurances of others that the guy was OK. It is thus not a question of malice but of papal competency.

For the reader who has not read and marveled at the actual Swedish TV interview of Williamson I have posted it below. It is well worth viewing. Regard his dress: the neat white collar, the tasteful red piping and red buttons on his black tunic, the stunning scarlet cumberbund, the beautiful silver necklace with its jeweled cross nicely looped from the third button so as to be easily visible on TV. Regard his movie star good looks and carefully coiffed silver hair. Every bit of a man of distinction and high achievement. Or not? Note as you view it the so-earnest scientific logic of his argument: Jews could not have been gassed at Auschwitz because the doors on the gas chambers there do not fit tightly and the cyanide would therefore have leaked out and killed the Nazi's working in the chamber. Q.E.D.

Note next the below-the-belt shot that the Jews have simply exploited the Holocaust and used it to shame the Germans into paying them billions of euros. Finally, and best (or worst) of all, note the sly snide smile on his face as he brings to the Swedish interviewer's attention the fact that his statements are criminal under German law, where the interview is being conducted, and he therefore hopes the interviewer will not turn him in. How cute he is. How he loves his role as the anti-semitic provacateur! One can only hope the prosecutor in Regensburg is preparing charges and will patiently wait until Williamson can be found in a country with an extradition treaty with Germany.

Tuesday, January 20, 2009

White Liberation in Action

Shortly after I posted my White Liberation Day comment immediately below, this comment appeared in Jack Cafferty's blog on the CNN website and it so beautifully illustrates my point that I want to pass it along here. The question put by Cafferty was whether the Inauguration of Barack Obama is too extravagent, to which this woman replied as follows:

Dawn from Sellersville, Pennsylvania writes:
Extravagant yes, but well worth the effort. This is a glorious event I never thought would come to pass. As a black woman, I’ve noticed since the morning after the election there has been a subtle change in our society. People actually speak to each other. I can’t tell you how many people make a point to have eye contact and say good morning or good afternoon. The message that is being sent is a new beginning for our great country. The world is envious and I am proud.

Monday, January 19, 2009

Obama's Election -- A Day of White Liberation

A Comment on Martin Luther King Day

I have a take on Barack Obama's election that I have not seen otherwise expressed, at least not in this form: his election is a liberating event for white Americans. As Chris Matthew said, "we are better than we thought we were." We may have known it all along, but Obama's election made us feel it in a new way.

By "white Americans" I mean all white Americans who are fundamentally fair-minded and feel goodwill toward others, however imperfectly those feelings are expressed. I exclude and rule out from my comment those white Americans who for reasons of mental illness, mental retardation, religious intolerance or a debilitating sense of inferiority are psychically locked into incurable racism. We simply need to draw a virtual fence around that sad subset of the population and do whatever damage control is necessary to limit the harm they can do to others.

I had the good fortune to be raised in a family environment in which we were made to understand that all men are equal and were not permitted to use the word "Nigger." This teaching was understated and assumed, never hammered in. It was part of the elementary rules of conduct which came down to us from our middle-western White Anglo Saxon Protestant and largely Republican party tradition. It was part of the air we breathed. I would like to think, and I do think, that most white Americans have similar values, however suppressed they might be.

From this perspective the election of Barack Obama is a hugely liberating event for white Americans, a tremendous relief, a load off our backs. Racism, discrimination and inequality are terrible psychic burdens to white Americans, whether we realize it or not. I am no racist: I do not like racism, I do not need it, I do not want it, I do not wish to perpetrate it, it weighs me down, it distorts my relation to others and it depresses me. Yet, despite my own views and values I am acutely conscious of the racism, discrimination and injustice which African-Americans suffer, and I feel guilty on account of it.

Obama's candidacy gave we white Americans an unusual opportunity to show in the most public and momentous way that our happiness does not depend on white supremacy, that we are perfectly happy, indeed delighted, to support and choose an African-American as our president. I cannot speak for the impact of the election upon African-Americans, but I can attest that white Americans also shed tears of joy on election night. Tears of joy and relief, I should add. And, what is astonishing is that white Americans two and one-half months later still shed tears when they recall how they felt on election night.

The election has demonstrably moved us away from the historical model of a bi-racial society, with whites on top and everyone else underneath. And we white Americans supported, helped finance and voted for the death of that model. We know full well that America is in fact a multi-racial society, and we know we are fortunate that it is. Obama's election somehow brings that fact into the sunlight and shows our overdue and explicit recognition of the de-facto multi-racial society in which we live. Looking the other way, I hope that African-Americans will over time come to realize how strongly white Americans supported Barack Obama and how badly they wanted -- how badly they needed -- him to win.

Of course there is still a long way to go, but the game has changed. Thank Heaven! What a fine tribute to Martin Luther King today.