Feb
28

So Long To The Fourth Amendment

“If you see something, say something.” That’s the mantra of the new national security state.

In a post-9/11 world, we’re all junior G-men on the lookout for terrorists. But if you try to complain in a courtroom when Government overreaches, you just might get thrown out of court. You might lack standing, or the you might learn that the Government is immune from suit, or maybe the individual you sued will be given a free pass by a judge granting what lawyers call qualified immunity.

Targeted killing by means of drones, those lethal big birds operated by joystick warriors? Too bad. Rendering suspected terrorists to foreign lands less troubled by the use of torture? So sorry. Eavesdropping on international phone calls and emails? Why that’s business as usual.

The Supreme Court is complicit in our gutting of the Fourth Amendment. Consider the recent case of Clapper v. Amnesty International. Civil rights activists and lawyers sought to challenge the warrantless interception of international electronic communications. The court ruled that those bringing the action lacked standing to sue, thus refusing to even reach the issue of whether the Government violated the law.

The doctrine of standing is intended to assure that courts hear only those cases involving actual controversies between parties. In the fusty language of the law, a party has standing to sue if he or she is involved in an actual case or controversy. In other words, was one party harmed by the action of the other? If there is no harm, there’s no case, no controversy, and no matter how important the issue raised, the courts will not hear it.

In the Clapper case, a 5-4 majority of the highest court in the land concluded that Amnesty International, the American Civil Liberties Union and others did not have standing to complain about Government interception of electronic communications. The parties bringing the action had the burden of proving standing. But when they attempted to get their hands on the proof that the Government had wiretapped them, the Government refused to comply with requests for information, citing national security.

So in this new Orwellian universe, folks are told they cannot try to prove the Government violated their right to privacy because the Government refuses to give up evidence necessary to prove the case. The evidence is withheld in the name of keeping safe those whose rights the Government may, or may not, have violated. Trust and obey, we’re told.

And we do.

We get the Government we deserve. The Fourth Amendment merely prohibits unreasonable searches and seizures. Just what is or is not reasonable is decided on a case-by-case basis. Sometimes, juries get to evaluate the conduct of law enforcement agents, deciding what is reasonable. Often, judges decide the issues without juries, deciding, as a matter of law, what is and is not reasonable.

If we, the people, are prepared to accept surveillance, targeted killings, renditions and other broad assertions of federal power in order to make us feel safe, then, by golly, isn’t that proof enough that this is reasonable?

 

The Obama administration claims that the secret Foreign Intelligence Surveillance Act courts provide sufficient judicial review of intercepted communications to protect our rights. The administration proposes a similar court to review targeted killings of American citizens believed to be associated with al-Qaeda. But these courts operate behind closed doors. There are no juries; no public proceedings. We are told merely to trust the process. I suppose that’s easy to do, so long as someone else is getting killed, snooped upon or whisked away to a Saudi prison.

Where once we gave aid to dissidents who sought to oust Fidel Castro from power in Cuba in the name of liberty, we now use Cuba to warehouse people at Guatanamo Bay.

Historians sometimes speak of cycles in history. We’re in a profoundly conservative cycle just now, current occupant of the White House notwithstanding. Ordinary politics is dissolved into the dysfunctional bickering of professional politicians who can’t even agree on a budget to govern. But these same politicians find all the money they need to fund a national security state run in secret, and, apparently, increasingly free to target we the people.

Oh, we still employ the rhetoric of liberty with zeal. But we do so in meaningless and petty ways. While the Fourth Amendment is being gutted, lollipop patriots strut the streets demanding the full measure of respect for their Second Amendment right to carry guns. We need these guns to keep Government in check, right? Oh, we, the self-selected members of a citizen’s militia.

Utter nonsense, or, more accurately, white noise.

I cannot recall the last time I read about a gun being used as a political tool to oppose the depredations of Government. Instead, we turn the guns against one another. Corporations make a killing selling guns to a vast and growing security regime of local, state and federal law enforcement officers. There’s yet more money to be made selling private citizens guns. The demand for guns is kept high by selling fear.

The Government taps your phone? By golly, buy a gun. An American citizen is targeted for anonymous death by drone? Buy another gun. Your lawsuit is thrown out of court because the Government tells you that the information it may, or may not, have collected about you must be kept secret? Arm yourself for Armageddon. But here’s the trick: Just keep shooting at one another, thus requiring more police, more guns, more prisons, more Government.

We don’t give a damn about liberty any longer. We’re unfit to play act scenes from the founding of this nation. We’re sheep, led to slaughter and pacified by the scent of gunpowder.

I watched “Zero Dark Thirty” the other day. It portrayed the triumph of the national security state. Torture? Fine. Gunfire as national prayer? Check. Osama bin Laden shot dead? Amen.

I found it odd that the filmmakers never let us see the face of the dead terrorist, however. I suppose that was deliberate. Perhaps they didn’t want us to see the smirk on his face. You see, he won the war on terror. We’re destroying ourselves now without his help, one gunshot, one court decision, at a time.

 

 


Feb
21

The Power To Tax ...

I didn’t see any headlines heralding the anniversary, but I noted it nonetheless. Feb. 3 was the 100th anniversary of ratification of the 16th Amendment to Constitution. It enshrined the income tax in federal law.

It’s not the sort of date I would normally notice. But I was neck-deep in a tax trial in federal court. The United States was prosecuting my client, Donna Bello, and another defendant, Jill Platt, for their role in something called “gifting tables.” The government charged them, among other things, with impeding the ability of the government to ascertain taxes owed.

That struck me as a an odd sort of criminal charge. The law is that you can be guilty of obstructing IRS efforts to determine taxable income even if you owe no taxes. Just how in the world did I become one of the crops on this tax plantation?

I recall my surprise in law school decades ago. All income is within the government’s reach. To put it in the words of the Supreme Court, any accession to wealth is taxable. That means that you owe taxes on a portion of every dollar hitting your hands, unless Congress says otherwise. We’ve developed a complex tax code. At last count, it and associated regulations and rulings fill almost 80,000 pages.

I suspect most folks think that once they earn a dollar and pay tax on it, they are free to do with their money what they want. But consider the following: Your decision to give money to another person creates income for them. Money circulating in the economy is one big revenue stream to the tax man.

Doesn’t that stand on its head the notion that the federal government has limited powers? Isn’t the power to tax the power to destroy?

In the gifting table cases, hundreds, if not thousands, of women across the state gambled on a provision of the tax code they thought might keep money out of the hands of the tax man. Federal law permits a person give a gift of up to $14,000 per year to another. The recipient need not report it as income, so long as the giver intends it as a gift, with no strings attached. In the turgid language of our courts, a gift springs from a disinterested and detached generosity.

To get on one of the tables, a person gave a gift of $5,000 to a person at the head of the table. Participants advance to a rank of four, then two, and finally arrived at the top position. Once a person at the top received eight gifts, the table dissolved, with the women in the rank of two now occupying the top position of new and separate tables. The person exiting the top then was free to join another table by starting all over with a $5,000 gift on a new table.

Scores of women testified in court in the past month about the tables. Many described it as a wonderful experience, meeting with other women for purposes of mutual support and sisterhood. A handful testified that they were unhappy with the tables. No one testified that they thought they would gain a return by giving money to another. Every participant joined a table and knew that in order to get a return, they had to participate.

Unlike Bernie Madoff’s empire, no one stayed at the top collecting money from folks unaware of what was going on.

The government smelled revenue in the gifting tables and it set its sights on several of the senior members.The government says the tables are pyramid schemes. Participants say otherwise. Wednesday, a jury of 12 sided with the government.

My client now faces a prison sentence, and back tax payments.

We tried to defend on the basis of good-faith belief that the tax code wasn’t violated, and that participation of lawyers and at least one federal law-enforcement agent would make a reasonable person believe everything was legitimate. We also tried to put on evidence of sometimes confusing and muddled advice the women received from lawyers.

The jury never heard from several witnesses, who appeared with lawyers of their own. The witnesses pleaded the Fifth Amendment right against self-incrimination and we were unable to present to testimony about lawyers’ winking at their participation on the tables.

Only the government can grant immunity to witnesses. In this case, the government offered immunity to one witness, who testified against our clients. We complained that it was unfair for the government to have the right to grant immunity to the witnesses it liked, while withholding immunity from witnesses it did not like. This got us nothing but a potential issue on appeal.

The jury made short work of our defense. The verdict depresses me. I might not join a gifting table, but those who joined were informed about what they were doing, and participated, often for years, while enjoying the fellowship of the group.

I had hoped the jury in the gifting tables case might be troubled by a government using double standards and animated by the principle that it is entitled to a piece of every dollar that finds its way into our pockets. We’ve come a long way since the founding of the republic. Trust and obey is the new national anthem.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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