Trading Freedom and Security on the Border

"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."

--Fourth Amendment to the United States Constitution (1791)

Over the past few weeks, several stories have come across my computer that were all concerned in one way or another with the Fourth Amendment rights of the Constitution, which is understood to guarrantee the right to personal privacy. The first was about a young activist from the Campaign for Liberty, who was illegally held for questioning at the St. Louis Airport at the end of March on the pretext that he was carrying a large amount of cash. He recorded the harrassment he received from TSA officials on his cell phone, which was later played on Fox News' Freedom Watch. (Hat tip to Rational Jenn). At about 2:47 minutes into the recording, a TSA agent says: "If you have nothing to hide then you you can just tell me what it's for . . ."

In another, unrelated story that I found after being directed from Doc's blog to another, I read about Steven Anderson, a Baptist minister from Tempe Arizona, who was detained at an internal DHS/Border Patrol checkpoint, and when he refused to answer any questions, he was moved to a secondary area, forcibly removed from his car, tazed and beaten prior to being arrested or read his Miranda rights. The entire story is related in five parts on You Tube posts of Freedom Watch. In part 4, a video of the encounter shows the DHS/Border Patrol unable to articulate any probable cause, and in part 5, Judge Napolitano discusses the minimum legal requirement for any search and seizure: articulable probable cause. The assumption that if a person will not answer, he must have something to hide is a feature of this story. At one point, you hear the Border Patrol agent say to Pastor Anderson: "And until we prove you are not guilty . . ."

This is a very worrisome statement, given that US law, which is based on English common law states that a person must be considered innocent until proven guilty.

What was even more alarming to me was that when I took a look at the comments to both of the above stories in newspapers online, at You Tube, and the comments at Doc's about this, many Americans are content to believe that if a person defends his right to be secure in his very person, in his property and personal effects, then that person must be hiding something, because, after all, "if he has nothing to hide, he should cooperate."

This kind of statement is a logical fallacy called a false dichotomy. It puts the person being harrassed in the situation of being considered guilty of something if he does not answer the question or consent to the search. The problem is that there are other options than "innocent means nothing to hide" and "refusal means guilt." By being coerced into a response by the false dichotomy, the individual surrenders the principle that he has the right to that security in his person, property and personal effects. And there is no partial surrendering of rights: it's all or nothing. And once a person surrenders any of his rights, he has placed his power into the hands of government. Our founders understood this to be a very dangerous proposition:

"Experience hath shewn, that even under the best forms (of government) those entrusted with power have, in time, and by slow operations, perverted it into tyranny."

— Thomas Jefferson

Certainly the treatment of American citizens we have witnessed in these incidents is tyrannical. And the reality is that innocent people are harmed by such abuse of power often enough. There are bad cops. There are bored cops. And there are DHS/Border Patrol agents that do not know or understand the law.

Many people also argue that the Supreme Court has ruled that the Border Patrol is allowed to violate the Constitutional right to security in person and possessions, and that there is a certain territory within 100 miles of the international borders of the United States that are effectively "Constitution-Free Zones." (Hat tip: Consent of the Governed).This is an egregious abuse of power that can effectively end our liberty to move freely within our own borders. Here is what the ACLU has to say about the increasing power we have given over to the Federal government to meddle into our affairs:

"If the current generation of Americans does not challenge this creeping (and sometimes galloping) expansion of federal powers over the individual through the rationale of “border protection,” we are not doing our part to keep alive the rights and freedoms that we inherited, and will soon find that we have lost some or all of their right to go about their business, and travel around inside their own country, without interference from the authorities." (grammar problems in the original)

The argument that because the Supreme Court has made a ruling means that the particular behavior is constitutional is also false. The Supreme Court has made unconstitutional rulings in the past. For example, consider the infamous Dred Scott decision, Buck v. Bell., or Plessy v. Ferguson. These unconstitutional rulings can do quite a bit of damage to the lives, liberty and property of citizens before they are reversed by the pressure of determined citizens. We must be those citizens and assert our rights against intimidation by false dichotomy or any other means.

I have experienced these "Constitution Free Zones" repeatedly in my travel within New Mexico, and I have always asserted my rights by stating that I am a citizen traveling freely within the borders of the United States. Since the Border Patrol does not have the legitimate authority to enforce the law, other than immigration law, they do not have the right to receive answers to any other question. On the other hand, since I have been detained unreasonably, often far within the borders of my own country, I always ask for the agent's ID. I have the right to know who this person is who is stopping me, and on what authority. However, I have often been waived through these checkpoints because I am driving while white.

As I wrote a few months ago, being On the Border has become fraught with dangers. However, those dangers should not be exacerbated by our government, our peace officers, or federal agencies, such as the Department of Homeland Security, which was established by the unconstitutional Patriot Act.

I stand with Benjamin Franklin, who wrote:

"He who would trade freedom for security deserves neither . . ."

. . . and he ends up with neither.

Voting in Tijeras: Crests, IDs, Ballots and Other Things Totally Un-PC

So call me old-fashioned.

This morning, the Engineering Geek and I drove down to the Tijeras Village Hall to vote.

Yes, on election day itself.

What a concept.

I like voting in my precinct in my neighborhood. I see my neighbors. We chat while munching on coffee and cookies provided by the Village of Tijeras.

There are some unspoken rules about what to chat about while waiting in line.

We do talk about the weather, the progress of the I-40 rennovation in the canyon, the village crest--which sports a conquistador helmet with a Zia, a Spanish sword, the charter from Spanish King Phillip II, a yucca plant and a rosary. Rural New Mexico is refreshingly politically incorrect.


Digression: Bernalillo County's crest used to sport a cross above a green hill with sheep grazing and the legend "In hoc signe venices." Then we got an influx of refugees from Lebanon in the 1980s. Some of them were uncomfortable with the cross, which reminded them of being hassled by the Christian police. So, in the name of New Mexico hospitality, the county took the cross off. For a while, the legend remained--In this sign we conquer-- proudly emblazoned over the grazing sheep. (!) Eventually, someone down at the county building in Albuquerque must have noticed the irony, because now there's just the sheep grazing on the hill and a Zia. No cross and no legend.

But back to what is and is not talked about in the voting line:
We do not talk about candidates by name, nor do we wear any T-shirts or campaign buttons.
In small towns, we have to get along long after the election is over. So the joking is mostly on the level of saying that we think we'll write in the totally politically incorrrect Coronado himself, or a neighbor, or the Rancho Verde cat that everybody feeds but nobody owns.


When they officially opened the doors to our precinct station, we filed past the poll watchers, who helped us find our numbers, and then we gave our name and address to the poll-worker. Sometimes they ask for an ID, although the Dems that run the state have made that illegal. You can just state your name and address. When a poll-worker asked for my ID--probably because I am registered third-party--I smiled and stated my name and address again. They gave me the ballot. I wrote down my ballot number as well as my registration number and page, before proceeding to vote.


New Mexico has gone to paper ballots. This is actually more efficient because we sit at study carrels and darken in the ovals with the pens provided. There is room for about 50 people to vote at once this way. So I sat down at the carrel indicated by the poll worker, and began to darken in ovals. It was a lengthy ballot, but I had looked up the ballot on line to plan my vote.


Aside from the presidential race, I mostly voted major-party for the Republicans, because I figure that if the projected coronation takes place, we'll need opposition in Congress. And there were no third party candidates anywhere else on the ticket anyway.


There was a long list of judges up for retention. There were a few I did not know about, so I left those blank. (I believe it is immoral to vote for or against someone I know nothing about). Most of the others are worthy of retention, with one noteable exception--the judge who sentenced a marine who defended his home and family from a crystal meth-crazed car thief at 2 AM to a felony because he shot the guy. I guess this judge thought the guy should have let the gang banger live to come back for revenge--maybe when the wife was home alone with the baby.


While I was mulling over this decision, I was also listening to the busy sounds of neighbors voting. In the old days of machines, the voting rooms were remarkably quiet. Not so, now that we are at carrals. An elderly man and his wife were loudly talking about this same judge. "Vote no for ______!" the wife said authoritatively. "He lets criminals out of jail."
"Too bad we can't vote out the mayor of Albuquerque," he responded. "That one is more interested in telling city workers that they can't have a candy-bar on break (not healthy enough, EHL) than in the fact that the armed burgulary rate is five per day, and the police are busy hassling elders for leaving the dog in the car for five minutes!"
"Vote against the incumbent for District Attorney,then." Said another voice. "She's the one who decided to prosecute (the marine)."


Well, I guess this couple did not wish to keep their entire ballot secret.


I continued down the list. On to the county bond issues, the mill-levy, the constitutional amendments, and the state bond issues.
The county bonds were mostly for things the county should do, not very expensive, and in one case, overdue. A few were not so good. The mill-levy was a continuance of support for UNM hospital that had been first voted on in 1957. The state bonds took even more consideration. Some would support services I use--but not everybody does. And on the other hand, all of them were expensive and the taxpayers are already in hock to the maximum. And we don't know what is going to happen with the economy. If Obama is elected, and keeps even a third of his promises to spend money the Federal government does not have, we'll be in so deep that people won't be able to pay.
So I voted against all of them.
The State's got to learn to live on what it has.


As I was checking my cheat-sheet about the constitutional amendments--some were good and some were not so good--I heard a woman behind me ask for a new ballot.
She had spoiled her ballot. She sounded frazzled, but the poll-workers reassured her and issued her a new ballot and a magnifying glass (cool, huh?); there was a little hub-bub about how to record the problem. It sounded exactly like a busy classroom.


As I continued to accept and reject specific constitutional amendments, someone came in and could not find his name on the list. I listened with interest as the poll-workers used a cell phone to call the county clerk, and then proceeded to check on how to issue a provisional ballot.
All in a day's work.


In New Mexico, the poll workers cannot turn you away ballotless. They must have you sign an affidavit that you have not voted yet, and then you can cast a provisional ballot. It will not be counted, however, until after it is confirmed that you have not voted elsewhere, and that you are a legitimately registered voter in the same county.
This is what delayed our returns during election 2004, when we were still voting with machines. But I'd rather have late returns so long as no one is disenfranchised and yet every vote is legitimate.
Given the state of patronage politics in New Mexico, however, I have serious questions about both.


Everyone at the precinct sounded awake and cheerful, not yet tired from the long day ahead at the precinct polling place. At 7:17 AM, I fed my ballot into the combination ballot-reader and locked ballot box. It read with no problem.
I had cast the 17th ballot in precinct 553. I wrote that down, too. In case of irregularities, I will go down to the county clerk's offices, as I did in 2000--when Gore won the state by just 400 votes--and be an unofficial watcher--to try to make sure the process is fair.


Now we just await the results.
Along with Rational Jenn, I Can't Look.
In New Mexico, this election will be close. And there is much at stake.


I hope there are no Ohios or Floridas this 'lection.
No hanging chads and pregnant bubbles.
It's going to be close nationwide. And the country is so divided . . .
And I worry about what ACORN may have done to fan the flames of division into a full-scale wildfire.

But I did my civic duty. Even though I have very little faith in the whole electoral process. Such as it is.

Here at Ragamuffin House, we have begun to prepare for the economic devastation of an Obama victory. But that's a different post.


Now. We. Wait.

A Civics Lesson: 'Innocent Until Proven Guilty' is a Bedrock Principle of Justice

I got an interesting comment on my post about the flag brouhaha at the University of New Mexico. Although I had to delete and repost it because I do not want certain words on my blog, the commentor had also an interesting take on our justice system. I originally started to discuss this in my reply to his comment, but soon realized that my take on it really deserves a full post.

On October 3, 2007, the anonymous commentor said in part:

"In a legal system where "guilty" means "what they can prove you did", Peter Lynch might get off with just a slap on the wrist."

This statement indicates a fundamental misunderstanding of the origins of the 'innocent until proven guilty' concept that underlies our system of trying cases in court.

The idea that a person is innocent until proven guilty is a bedrock concept that insures justice in our courts. The justice we are talking about is justice in trial for the accused in criminal cases where the state brings the accusations to court on behalf of the citizens. Our founders based this on the English common law that is based on the Magna Carta. That document is based on local practices in England that predate the reign of King John.

Why is this considered justice? Because the state, with all its powers, is bringing a case against an individual. The state has numerous advantages in such a situation. In order to ensure a fair trial, as is constitutionally guarranteed to the accused, it is necessary to force the state to prove the accusations before a candid citizenry. Therefore the state must follow these rules: the accused must be informed of the exact charges against him/her. The accused must be formally charged and tried in timely manner, and the accused must be provided a fair trial with legal representation. There are also rules of evidence that must be used or the case can be dismissed. The accused also has the right to appeal a verdict all the way up to the United States Supreme Court if necessary. Under current law, those appeals are automatic in cases in which a guilty verdict could mean that the accused is deprived of life.

There are many countries in which these legal protections do not apply. Under Napoleanic law for example, the onus is on the accused to prove innocence. I am glad that I do not live in such a nation. It would be too easy for public opinion or state prejudices to railroad the innocent, depriving a person of life, liberty and property unjustly.

It is true that under our system, the state is not always able to prove a case against someone who is, in truth, guilty. That is the price we pay for the protection of our liberties.
It is also true that there are times when overzealous prosecutors manage to railroad an innocent person using public perception and the power of the state against them, despite their sworn duty to uphold the constitution. The answer to this is not to jettison our constitutional protections. Rather, we should bring hold such people accountable and work to bring our local systems closer to the ideals we espouse.


The farmers who "fired the shot heard 'round the world' in Lexington and Concord had a fundamental mistrust of the powers of government. They had seen those powers abused by the British Crown and they had been hurt by the Intolerable Acts and other abuses perpetrated on them. Their interest at first was to protect their "rights as Englishmen." When the United States Constitution was ratified by the states, the framers were in a quandary. The Articles of Confederation were weak and were creating chaos. At the same time, most citizens were very wary of giving powers to a national government; powers that could be turned against the citizens. So when the constitution was ratified, the first ten ammendments were immediately ratified also. The whole package guaranteed certain rights to the citizens and limited the power of the state. Part of that package is the protection enjoyed by the accused in criminal cases.

Another statement by the anonymous commentor that deserves a response:

"Forget his actions, judge his motivations (since everyone seems to be throwing judgment left and right).. But only he knows what really motivated him to do what he did - and the way he chose to do it."

Yes, you are right. The controversy as it plays out in the press is about Lynch's motivations. Some people argue that his motivation was frustrated patriotism and they believe that this should be taken into account by the legal system. Others argue that he was motivated by hatred and that this should be taken into account by the legal system. The whole controversy about the alleged My Space comments is about motivations and not about action. The My Space comments are mean, nasty and socially unacceptable. People have various opinions about them. And that is their right.

But we ought to remember that people have the right to express their opinions freely--even unpopular ones. Even mean, nasty and socially unacceptable ones. Even politically incorrect ones. Even opinions that La Raza does not approve.

In the legal system, however, motivations should play only a small role in the matter. That is because we cannot prove them. What should matter is actions. This is why Peter Lynch has been charged with the crime of destruction of property. The level of punishment for this crime is also written in the law, and has many factors that must be analyzed. Is it a felony or not? Is it a first offense? How serious is the action? Who was hurt? Whose rights were violated and to what extent? These are the matters which should concern the courts. The job of the criminal court system is not to mirror the vagaries of public approbation. It is to provide a place in which reason and proof are used to uphold the laws of the state and nation.

Every citizen has the right to be considered innocent until proven guilty. In the United States, the burden of proof is upon the state.