Radley Balko writes: On Jan. 4 of last year, a local narcotics strike force conducted a raid on the Ogden, Utah, home of Matthew David Stewart at 8:40 p.m. The 12 officers were acting on a tip from Mr. Stewart’s former girlfriend, who said that he was growing marijuana in his basement. Mr. Stewart awoke, naked, to the sound of a battering ram taking down his door. Thinking that he was being invaded by criminals, as he later claimed, he grabbed his 9-millimeter Beretta pistol.

The police say that they knocked and identified themselves, though Mr. Stewart and his neighbors said they heard no such announcement. Mr. Stewart fired 31 rounds, the police more than 250. Six of the officers were wounded, and Officer Jared Francom was killed. Mr. Stewart himself was shot twice before he was arrested. He was charged with several crimes, including the murder of Officer Francom.

The police found 16 small marijuana plants in Mr. Stewart’s basement. There was no evidence that Mr. Stewart, a U.S. military veteran with no prior criminal record, was selling marijuana. Mr. Stewart’s father said that his son suffered from post-traumatic stress disorder and may have smoked the marijuana to self-medicate.

Early this year, the Ogden city council heard complaints from dozens of citizens about the way drug warrants are served in the city. As for Mr. Stewart, his trial was scheduled for next April, and prosecutors were seeking the death penalty. But after losing a hearing last May on the legality of the search warrant, Mr. Stewart hanged himself in his jail cell.

The police tactics at issue in the Stewart case are no anomaly. Since the 1960s, in response to a range of perceived threats, law-enforcement agencies across the U.S., at every level of government, have been blurring the line between police officer and soldier. Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties. [Continue reading…]

Glenn Greenwald writes: The Obama justice department succeeded in convincing the five right-wing Supreme Court justices to dismiss a lawsuit challenging the constitutionality of the 2008 law, the FISA Amendments Act, which vastly expanded the government’s authority to eavesdrop on Americans without warrants. In the case of Clapper v. Amnesty International, Justice Samuel Alito wrote the opinion, released today, which adopted the argument of the Obama DOJ, while the Court’s four less conservative justices (Ginsberg, Breyer, Sotomayor and Kagan) all dissented. This means that the lawsuit is dismissed without any ruling on whether the US government’s new eavesdropping powers violate core constitutional rights. The background of this case is vital to understanding why this is so significant.

One of the most successful government scams of the last decade has been to prevent any legal challenges to its secret surveillance programs. Both the Bush and Obama DOJ’s have relied on one tactic in particular to insulate its eavesdropping behavior from judicial review: by draping what it does in total secrecy, it prevents anyone from knowing with certainty who the targets of its surveillance are. The DOJ then exploits this secrecy to block any constitutional or other legal challenges to its surveillance actions on the ground that since nobody can prove with certainty that they have been subjected to this eavesdropping by the government, nobody has “standing” to sue in court and obtain a ruling on the constitutionality of this eavesdropping.

The Bush DOJ repeatedly used this tactic to prevent anyone from challenging the legality of its eavesdropping on Americans without the warrants required by the FISA law. That’s another way of saying that the Bush administration removed their conduct from the rule of law: after all, if nobody has standing to obtain a court ruling on the legality or constitutionality of their conduct, then neither the law nor the Constitution constrain what the government does. Simply put, a law without a remedy is worthless. As Alexander Hamilton put it in Federalist 15:

“It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”

Thus did the Bush DOJ exploit their secrecy extremism into a license of lawlessness: they never had to prove that even their most radical actions were legal because by keeping it all a secret, they prevented anyone from being able to obtain a ruling about its legality. [Continue reading…]

Adam Serwer reports: There’s nothing like a debate over warrantless wiretapping to clarify how the two parties really feel about government. On Friday, the Senate voted to reauthorize the government’s warrantless surveillance program, with hawkish Democrats joining with Republicans to block every effort to curtail the government’s sweeping spying powers.

As the Senate debated the renewal of the government’s warrantless wiretapping powers on Thursday, Republicans who have accused President Barack Obama of covering up his involvement in the death of an American ambassador urged that his administration be given sweeping spying powers. Democrats who accused George W. Bush of shredding the Constitution with warrantless wiretapping four years ago sung a different tune this week, with the administration itself quietly urging passage of the surveillance bill with no changes, and Senator Dianne Feinstein (D-Calif.) accusing her Democratic colleagues of not understanding the threat of terrorism.

“There is a view by some that this country no longer needs to fear an attack,” Feinstein said.

So what were these drastic changes sought by Feinstein’s colleagues that would leave the United States open to annihilation by terrorists? They’re mostly attempts to find out exactly how the changes to the Foreign Intelligence Surveillance Act actually work in practice. The most radical proposal, Senator Rand Paul’s (R-Ky.) amendment requiring a warrant for the government to access any digital communications, had no chance of passing but clarified just how moderate the Democrats’ proposals were by comparison.

“It’s incredibly disappointing that such modest amendments that would have done nothing more than increase transparency and accountability failed to pass in the Senate,” said Michelle Richardson of the ACLU. [Continue reading…]

Wired reports: The Senate on Friday reauthorized for five years broad electronic eavesdropping powers that legalized and expanded the President George W. Bush administration’s warrantless wiretapping program.

The FISA Amendments Act, (.pdf) which was expiring Monday at midnight, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The House approved the measure in September. President Barack Obama, who said the spy powers were a national security priority, is expected to quickly sign the package before the law Congress codified in 2008 expires in the coming days. Over the past two days, the Senate debated and voted down a handful of amendments in what was seen as largely political theater to get Sen. Ron Wyden (D-Oregon) to lift a procedural hold on the FISA Amendments Act legislation that barred lawmakers from voting on the package.

In the end, the identical package the House passed 301-118 swept through the Senate on a 73-23 vote.

The American Civil Liberties Union immediately blasted the vote.

“The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years,” said Michelle Richardson, the ACLU’s legislative counsel.

Jonathan Turley writes: Free speech is dying in the Western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony.

In the face of the violence that frequently results from anti-religious expression, some world leaders seem to be losing their patience with free speech. After a video called “Innocence of Muslims” appeared on YouTube and sparked violent protests in several Muslim nations last month, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.”

It appears that the one thing modern society can no longer tolerate is intolerance. As Australian Prime Minister Julia Gillard put it in her recent speech before the United Nations, “Our tolerance must never extend to tolerating religious hatred.”

A willingness to confine free speech in the name of social pluralism can be seen at various levels of authority and government. In February, for instance, Pennsylvania Judge Mark Martin heard a case in which a Muslim man was charged with attacking an atheist marching in a Halloween parade as a “zombie Muhammed.” Martin castigated not the defendant but the victim, Ernie Perce, lecturing him that “our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.”

Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.

This was evident in recent days when courts in Washington and New York ruled that transit authorities could not prevent or delay the posting of a controversial ad that says: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”

When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply because it could upset some Metro riders, the ruling prompted calls for new limits on such speech. And in New York, the Metropolitan Transportation Authority responded by unanimously passing a new regulation banning any message that it considers likely to “incite” others or cause some “other immediate breach of the peace.”

Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”

The new restrictions are forcing people to meet the demands of the lowest common denominator of accepted speech, usually using one of four rationales. [Continue reading…]

In commenting on President Obama’s address to the United Nations General Assembly and his defense of freedom of expression, Paul Pillar notes: [T]he president’s presentation overlooked the single most important reason to safeguard free speech: it is one of the best ways to get closer to the truth — and to what is effective and to what works. John Stuart Mill, in his essay On Liberty, identified this as the primary reason for safeguarding freedom of thought and discussion:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.

Mill went on to explain further reasons for ensuring free expression and how the subject is not just a simple matter of something being true or false:

Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.

Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct.

An address by a head of government at the United Nations is not the same as a discourse by a political philosopher, and it probably would have been unwise to try to work this kind of reasoning into the president’s speech this week. But we should keep in mind this most fundamental set of reasons not only for why freedom of speech is something we cherish but also why it should be cherished, even when it appears to collide with, say, someone’s religious faith.

We should keep it in mind partly because the ills of restricted expression that Mill described sometimes infect our own public discourse, notwithstanding the constitutional guarantees of the First Amendment. This does not always take the form of false dogma imposing itself, although we see that in, for example, creationist attempts to affect school curricula. More often it involves the political correctness involved in automatic acceptance of a “general or prevailing opinion” — as it might relate to, for example, a foreign alliance or a perceived foreign threat — and quickness in shouting down those who challenge such an opinion.

William Saletan writes: The Arab spring has freed hundreds of millions of Muslims from the political retardation of dictatorship. They’re taking responsibility for governing themselves and their relations with other countries. They’re debating one another and challenging us. And they should, because we’re hypocrites.

From Pakistan to Iran to Saudi Arabia to Egypt to Nigeria to the United Kingdom, Muslims scoff at our rhetoric about free speech. They point to European laws against questioning the Holocaust. Monday on CNN, Iranian President Mahmoud Ahmedinejad needled British interviewer Piers Morgan: “Why in Europe has it been forbidden for anyone to conduct any research about this event? Why are researchers in prison? … Do you believe in the freedom of thought and ideas, or no?” On Tuesday, Pakistan’s U.N. ambassador, speaking for the Organization of Islamic Cooperation, told the U.N. Human Rights Council:

We are all aware of the fact that laws exist in Europe and other countries which impose curbs, for instance, on anti-Semitic speech, Holocaust denial, or racial slurs. We need to acknowledge, once and for all, that Islamophobia in particular and discrimination on the basis of religion and belief are contemporary forms of racism and must be dealt with as such. Not to do so would be a clear example of double standards. Islamophobia has to be treated in law and practice equal to the treatment given to anti-Semitism.

He’s right.

Saletan goes on to describe many of the cases of hate speech that have gone before (mostly) European courts.

How can you justify prosecuting cases like these while defending cartoonists and video makers who ridicule Mohammed? You can’t. Either you censor both, or you censor neither. Given the choice, I’ll stand with Obama. “Efforts to restrict speech,” he warned the U. N., “can quickly become a tool to silence critics and oppress minorities.”

That principle, borne out by the wretched record of hate-speech prosecutions, is worth defending. But first, we have to live up to it.

The Guardian reports: Three-quarters of the world’s human population of seven billion live under strong government curbs on religion, or among serious “social hostilities” involving faith issues, find researchers.

The US and UK, say the researchers, are among countries showing a worrying rise in religious discrimination.

The conclusions of the project, conducted by the Pew Research Centre, an American thinktank,’s Forum on Religion and Public Life, were published on Thursday. The analysis, of 197 countries and territories, identifies a sharp rise in religious limits globally and a 6% increase in restrictions in the four years until 2010.

The survey, The Rising Tide of Restrictions on Religion, is the second successive one by Pew to note increasing intolerance worldwide.

Painting a stark picture of a “rising tide” of intolerance and government restrictions on religious matters, the report cites evidence including “crimes, malicious acts and violence motivated by religious hatred or bias, as well as increased government interference with worship or other religious practices”.

The project notes an acceleration in intolerance, reporting a 63% rise from mid-2009 to mid-2010 in numbers of countries that increased government restrictions, in comparison with Pew’s last survey that had noted a 56% rise.

Remarking on the trend, the report says: “The number of countries where harassment or intimidation of specific religious groups took place rose from 147 as of mid-2009, to 160 as of mid-2010.” [Continue reading…]