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Patriotic Atheist American Heritage

Recently I posted some hate mail on Facebook that the Arkansas Society of Freethinkers received. This email said that atheists have no heritage in the United States, that we aren’t real patriots, and that we don’t have the courage to step up and play with those who are.

Carey Dove

 

Dear Carey Dove:

I’ve studied constitutional law, history, and my own genealogy. I know what my heritage is. Apparently, you don’t know me at all.

Carey Dove

So, let me give you a little introduction to me, my knowledge about the constitution, and whether or not I have any American heritage.

We’ll start with the constitutional lesson.

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George Mason (1725-1792), portrait by John Hesselius (1728-1778)

George Mason wrote the first bill of rights to be adopted in the Americas. His Virginia Declaration of Rights, written in the spring of 1776, influenced revolutions on two continents. The Declaration of Independence drew heavily from it. The Bill of Rights plagiarized it. The French Revolution’s Declaration of the Rights of Man and Citizen tracked it. Its final provision was to grant religious freedom to Virginians.

Scene_at_the_Signing_of_the_Constitution_of_the_United_States

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1873-1952). See the three men huddled off to the right, looking on disapprovingly as the Constitution is signed by the other delegates? They are George Mason, Elbridge Gerry, and Edmund Randolph.

George Mason was a delegate to the 1787 Constitutional Convention in Philadelphia, when fifty-five men from twelve of the newly formed states argued about how to replace the unworkable Articles of Confederation. Mason dominated the discussions. Ultimately, he was one of three delegates who voted against it, primarily because it did not contain a bill of rights – there were no constitutional guarantees of personal liberty.

He would be vindicated four years later, when the bill of rights was adopted. The first of those rights was religious freedom.

BillOfRights-1024x673

So, now we have established that our constitution, and the history that preceded it, includes religious freedom. That means the freedom to dissent and to reject religion, because without the freedom to dissent and reject what we find to be wrong with religion, there can be no freedom in our practice of religion. And if we ultimately reject it all? That is the ultimate freedom.

So now I’ll embark on explaining the pedigree I have in this country.

A few years ago I was chosen to be on the Board of Regents that oversees the maintenance and operation of George Mason’s historic home in Virginia.

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Diorama of Gunston Hall

I was invited to sit on that board because of who my ancestors were. My European ancestors not only lived in colonial America, but they gave their time, talents, efforts, and money in public service to their colonies. They were politicians, military officers, doctors, judges, ministers, founders of schools, and founders of towns. They spoke out. They acted. They were patriots.

Who they were and what they did has shaped our country and its government. They shaped our states and our institutions. Their words and actions are this country’s heritage, and this country is their legacy.

On a very personal level, who they were and what they did has shaped who I am personally, and what I do. Their behavior, values, strengths, words, intelligence, and deeds are my heritage, and I am the culmination of their legacy.

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Anne Marbury Hutchinson (1591-1643)

My favorite ancestor is my 11th great aunt, Anne Marbury Hutchinson. Anne Hutchinson was a well-liked and respected mother of 15 children. She was brilliant, charismatic, and a passionate intellectual. She was also the polestar of a controversy that nearly shattered the religious experiment that was the infant Massachusetts Bay Colony.

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John Cotton (1585-1652)

Anne and her husband Will came to America in 1634 with a Puritan minister named John Cotton, who would eventually become the most preeminent theologian in the Massachusetts Bay Colony. Unlike the Puritan ministers already in Boston when he and the Hutchinsons arrived, John Cotton believed that a person had no control over his own salvation, but had to depend on God’s grace. This was Calvinist predestination in its purest sense, but it was contrary to what other Puritan ministers were teaching. They taught that the good works done by a person were the only ticket to salvation.

Boston 1634

Boston was a small town in 1634. Click to embiggen, and note that every single household is listed. Will & Anne Hutchinson and their large extended family stayed with friends and relatives while their own home was being built. The population of the entire Massachusetts Bay Colony and Plymouth Plantations was about 5,000 people. (Map from the Norman B. Leventhal Map Center Collection at the Boston Public Library)

The Hutchinsons were wealthy in England, but even wealthier in the colony. They built one of the largest homes in Boston. After church services, Anne Hutchinson would invite other women to gather in her home to discuss the sermons and the Bible. Anne’s meetings were very popular with the women of Boston, and soon men joined in.

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Anne Hutchinson Preaching at her House in Boston (Howard Pyle, 1901, from the Library of Congress)

Like her mentor John Cotton, Anne emphasized the importance of a state of grace over good works. People liked what she had to say. They were focused on feeding their families and running their businesses; they didn’t have time for unlimited acts of charity. As the number of people at her meetings escalated, Anne’s philosophy quickly leaked back to the Puritan clergy. Boston was a very small town in 1634.

The ministers claimed that Anne’s “unauthorized” religious gatherings “might confuse the faithful.” They argued the theological point of predestination – good works versus inherent grace – among themselves, and ultimately Anne was charged with heresy.

John Cotton, however, was not.

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Anne Hutchinson on Trial (Edward Austin Abbey 1901)

Anne was a woman, so was not authorized to preach.

Left to her own devices, Anne Hutchinson, the first female defendant in any trial in America, defended herself at her heresy trial, which was prosecuted by John Winthrop, her neighbor and the governor of the colony. Governor Winthrop was most displeased with Anne’s religious dissent, because his wife, Margaret, was very fond of attending the meetings in the Hutchinson home, and brought home with her ideas he found unbecoming in a woman.

And like the Reverend Dimmesdale in Nathaniel Hawthorne’s The Scarlet Letter, who was modeled after him, John Cotton essentially betrayed Anne to the powerful citizens who brought the charges against her. When he was called to testify, Cotton denied that he had incited any dissent in Anne, and smiled and shrugged, claiming he did not remember the substance of any of his conversations with her.

Atheist-A

It is no accident that this red A, the icon of the secular movement, evokes the scarlet letter Hester Prynne was required to wear in Nathaniel Hawthorne’s novel.

Upon hearing his repudiation, Anne Hutchinson did something she had been forbidden to do: she began to teach the men. While her teaching had been in private before, here, now, at her trial for heresy, she took off the gloves and came out punching. “If you please to give me leave, I shall give you the ground of what I know to be true.” Without waiting for permission, Anne continued speaking, explaining her own history, her dissatisfaction with the Church of England, her search for the truth she knew had to exist.

Governor Winthrop attempted to interrupt her. She ignored him and continued.

“God did discover unto me the unfaithfulness of the churches, and the danger of them, and that none of those ministers could preach the Lord aright.” Scripture fell from her lips as she brazened on, daring to teach, despite an exchange with Governor Winthrop earlier in her trial during which they had exchanged barbs about the ability of women to teach. (“What, now you would have me teach you what the Bible says?” she mockingly exclaimed to him.)

I don't know who painted this image of Anne and her persecutors. If someone else does, please notify me. I've found it in several places on the Internet,but never with attribution.

One of my favorite quotes from Anne is:
“How did Abraham know that it was God that bid him offer his son, being a breach of the sixth commandment?” Nevemind that, chronologically speaking, Abraham knew nothing about any commandments.

Governor John Winthrop was also, conveniently, one of the judges, so naturally Anne Hutchinson was convicted, and in November 1637, she was banished from Massachusetts.

Anne was 43 years old at the time of her trial. She was also pregnant, and during the trial she suffered a miscarriage. The superstitious Puritans allied against her saw the severely malformed fetus as proof that Anne had fallen from God’s grace.

Anne’s youngest sister was my 10th great-grandmother, Catherine Marbury Scott. Catherine and her husband, a shoemaker named Richard Scott, came to America on the Griffin with the Hutchinsons and John Cotton in 1634. They left Boston with Anne, first joining Roger Williams at a place he called Providence, in the Rhode Island and Providence Plantations secured by Williams as a separate colony. Williams had himself been banished from Boston in 1635, the year after the Hutchinsons and Scotts had arrived, for preaching that one did not need a a church in which to worship.

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Richard Scott’s signature on the Providence Compact that chartered the town

In Providence, the Scotts, along with many other of Anne’s followers from Boston, created a new community. Richard Scott wrote the Providence Compact, which was then signed by each of the 39 heads of household to come to that place. They became Baptists for a while, then Quakers. Then, in 1660, Catherine returned to Boston to protest the punishment of two young Quaker men. For her efforts she was stripped to the waist and flogged in public. Even though Boston had been unspeakably cruel to her sister 23 years before, Catherine did not hesitate to speak out when she saw the government do something wrong-headed. She was a worthy bearer of her sister Anne’s torch.

Anne herself was afraid to stay in Providence, especially after her husband’s death. Massachusetts had rattled its saber at the Rhode Island settlers, claiming it had the right to govern them, so she fled with her children to Long Island. There, in 1643, she and all but one of her children were murdered by natives. How long might she have lived had she not been run out of Boston? How much more might she have contributed to the ideas of women’s rights and freedom of conscience had she remained in Boston?

Far from being dour, rigid Puritans, Anne and Catherine were firebrands.

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Statue of Anne Hutchinson and her youngest child, Susannah, at the Massachusetts State House. Susannah was the only survivor of the family’s massacre by natives at their New Netherlands home in what is now Pelham Bay Park, NY.

Anne Hutchinson is a key figure in the development of religious freedom in the U.S., and in the history of women in ministry. She challenged authority, and she didn’t back down. A monument to her at the Massachusetts State House calls her a “courageous exponent of civil liberty and religious toleration.” She is easily the most famous – and infamous – Englishwoman in colonial American history.

Anne Hutchinson was a freethinker in the truest sense of the word: Dogmatic as she was in her own way, she seriously contemplated her religion, a deity, and the teachings of those who claimed to know, and then she drew conclusions for herself. The conclusion she reached was not the one that was favored in Boston in 1637. Nevertheless, she did not back down. She had the courage of her convictions, and today she is admired and even revered for her steadfastness.

I admire her enormously. Her courage in the face of adversity, her sustained intelligent wit, her sublime sarcasm – right to the face of the most powerful man in Massachusetts! This – this is a woman I can only hope to live up to as I exercise the courage of my own convictions.

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Firebrand atheism: an in-home “revival,” with Sam Singleton, Atheist Evangelist, at my house in December 2012

When I speak up and speak out, when I hold meetings in my home, when I dissent from religion, when I give my time and my money and my talents to my community and to issues I care about, I am following the legacy of my heritage. I am doing exactly what my ancestors have done ever since they first came to this continent.

For the 392 years that we’ve been in America, it’s been my family’s tradition to speak up and speak out, and to act on our convictions.

And that, Carey Dove, is a very proud heritage, with full knowledge of where our religious freedoms came from, with full knowledge of when they did not exist here, and with full knowledge of what happens when dissent is not allowed – and why it most definitely and wholeheartedly is.

How Facebook Can Win or Lose Your Lawsuit For You

Let’s face it: social networking is fun. We stay in touch with friends flung geographically far and wide, and we reconnect with friends from summer camp, college, and even kindergarten. We make witty comments in our status bar, witty comments about our friends’ statuses, and even wittier comments on those wonderful photos posted everywhere. We comment on political statements, join groups and become fans of things, and write posts about things we feel are important. We even write posts about things that aren’t so important, but that we think are hilarious at the time. We post family photos, high school reunion photos, and photos from parties.

Oops. Rewind.

Photos from parties? She doesn’t remember behaving the embarrassing way that picture depicts her, so maybe she should be reminded!

Reunions? He kissed his old girlfriend and now his wife wants an divorce!

“Witty” comments? Those can be taken any number of ways. And what if we – dare we even think it – get into smackdown-style ripostes with people who get on our wrong sides?

When we are in the midst of litigation where our characters may be an issue, social networking sites are Not Our Friends. Unless, of course, the Other Party’s character is the big issue and they have neither read this article nor taken its advice. Then we love social networking web sites. That’s because lawyers have subpoena power and are not afraid to use it in the quest for elusive evidence that will help win their clients’ cases.

Within the last few years, as more and more people from teenagers to grandmothers register with MySpace, Facebook, Twitter, Flickr, YouTube, Bebo, and any number of other social networking sites, personal information has become easily obtainable on the web. The personal information that these sites protect includes things like credit card numbers, telephone numbers and email addresses. They do not protect the information users carelessly put out in public for anyone to see.

The things that lawyers either love or hate these sites for are the things people do not bother to hide. These are things like how much a person drinks, who they kiss, who they are sleeping with, what social activities they enjoy, what clubs they belong to, what their political leanings are, where they hang out, where they were on a certain night.

Why would a lawyer care about these things?

I’ll tell you why.

Scenario 1:

Bob has come to Lawyer seeking custody of his two children, ages 4 and 7, who live with their mother, Candy. Bob tells Lawyer all kinds of horror stories that his kids have told him about their mother, none of which can be proven in court because (1) judges hate it when young children testify, and (2) it’s hearsay unless they do.  Bob tells Lawyer that Candy has a Facebook page.

Lawyer checks out Candy’s Facebook page, either through Bob’s account or through a third person who is a contact of Candy’s. It turns out that Candy is either a fan or a member of the following groups, among others: NORML, Facebook Sluts, Drugz Rule, and assorted others in the same vein.  On the wall of the group Heroin, Candy posted this comment: “ i think it should b legalized, its ur choice to do it…not anyone elses. It takes away depression nd i dont c wat the big deal of it.” On the wall of the Sex Workers of Pulaski County group, she posted, “i have sex with anyone that pays!” Candy has been tagged in a number of photos with her breasts bared, and apparently extremely intoxicated. She has posted at least three photos of her children riding in cars without seatbelts or car seats. One man posted to her wall, “Last night was gr8 babe but next time dose the kids with something to make them sleep.”  Her reply was, “sry benedryl usually works nex time i use codine.”

Bob makes screen shots of the pertinent posts for his lawyer and continues to deliver posts similarly devastating to Candy’s case on a regular basis. Lawyer files motions asking that Candy be immediately tested for both drugs and sexually transmitted diseases, both of which are positive. At the final hearing, all of these posts are presented as evidence. Candy has no choice but to admit they were made by her.

Guess who wins custody?

Scenario 2:

Joella is injured in an automobile accident. She has filed suit against the person who drove the other car, and who was at fault in the accident. Months and months pass, during which Joella still claims not to be able to walk more than about twenty yards at a go, and claims that she still cannot sit or stand for any significant period of time. Finally, at her deposition, a year after the accident and with her still claiming not to be any better, the other driver’s lawyer pulls out a photo that was posted to Joella’s Twitter account via TwitterPix. It is of Joella  in her snow-bunny outfit sitting on a ski lift. There are about twenty more pictures, all posted to that account over the week of Spring Break just three months after the accident. The accompanying Tweets make it clear that Joella not only had a great vacation on the slopes, but danced the nights away that week in Vail.

Her settlement is substantially lower than she had hoped.  In fact, it does not even cover her medical bills since she continued going to therapy claiming to be in terrible pain long after that ski trip.

Scenario 3:

Because they like crowds and many participants at their events, a group of drag racing enthusiasts posted their plans to hold illegal street races to a web site. They did not realize that police had discovered the web site a couple of weeks before, and to their dismay, on January 15-16, 2010, four of the racers were arrested. The police had staked out the location of the race. Yes, this really happened.

Scenario 4:

Remember the riots after the NBA championship game in Los Angeles last summer? Police used YouTube and Flickr to identify people involved in riots following the June 14, 2009 NBA Championship.

Scenario 5:

You don’t have to be the one who posts anything.  Like the looters and rioters in Los Angeles after the Lakers Championship in June 2009, people with cellphones took photos and videos of a fight in Suffolk, Virginia, that led to the arrest of the participants. The videos were uploaded to YouTube.

We’re starting to see this a lot in the employment law arena – e.g., employees calling in “sick” and then boasting on Facebook about the things they did while out – like drug use, vacations, etc. Surprise! – they get fired for it.

And what about the 17 year old Buffalo, NY girl who killed her boyfriend in a drunk driving accident, then a month later went on a beach vacation. Upon her return to New York, she posted a picture captioned “Drunk in Florida” to her Facebook page. How could she be surprised when the judge essentially threw the book at her at her sentencing?

I don’t think that, in general, this generation does things that are any more reckless or stupid than what many of us did in our youth (although this particular case is obviously egregious), but why would anyone what to publicize their stupidity to the world?

As for why people share these things with complete and total strangers (or just anyone, without restriction, who wants to see them), they either don’t know how to adjust the privacy settings on their accounts, or they’re naive enough to think that those whom they’ve granted “friend” status on a social networking site don’t include people who are just waiting for the chance to rat them out. It seems as if some are absolutely inviting the police to catch them at their illegal activities.

As LAPD’s chief detective Lt. Paul Vernon said as the riot arrests last June mounted, “It’s nearly impossible to stay anonymous in this age of cell phones, video, and social websites; and that’s a good thing, if it holds people more accountable for their behavior.”

The moral of the story is to behave always as though your worst enemy is watching. Chances are, he is.

Freethinkers Win Lawsuit and Get Their Seasonal Display

Yesterday in Little Rock, ground was broken on something amazing.

I say it’s amazing, because here in the Bible Belt, there is precious little tolerance for non-Christian points of view. If one isn’t Christian, one is unknowably alien, and to some, one is completely suspect.

Isn’t this a Christian nation? (Well, no, actually this country isn’t a theocracy at all.) Without Christian values, aren’t we likely to devolve into moral depravity? (No. Christians don’t have a monopoly on moral behavior – never have had and never will have.) But we all should accept Jesus Christ as our personal Lord and Savior! (Says who? Jesus? That has all the logic of a parent whose justification is, “Because I said so!”)

“Anne, you’re an atheist.” I hear the condemnation, and I take umbrage. I prefer the term “polyatheist.” There are a lot of gods I don’t believe in. And no doubt, anyone reading this is also a polyatheist. There are lots of gods that have been worshipped over the eons of humanity, and I’d bet my money that not a single reader of this essay believes in very many of them.

Christianity adopted many pagan traditions as it evolved. Celebration of the solstices and equinoxes are among those traditions. Christmas falls within a few days of the winter solstice, as does Hanukkah. Likewise, do the celebrations called Saturnalia, Maruaroa o Takurua, Deuorius Riuri, Amaterasu, Yule, Bodhi Day (also known in Buddhism as Rohatsu), Hogmanay, Soyal, Zagmuk, Beiwe, Shabe-Yalda, Lussi Night, Meán Geimhridh, Brumalia, Lenaea (the ancient Greek Festival of Wild Women), Alban Arthuan, Choimus, Inti Raymi, Maidyarem, Karachun, Makara Sankranti, Ziemassvētki, and Perchta. This list is by no means exhaustive. We will never know the many ways the winter solstice and the days surrounding it were marked by paleo-humans, but they left unwritten records of the fact that the event was noted and celebrated. Places like Stonehenge make drawing this conclusion inescapable.

So what is so groundbreaking in Little Rock?

The fact that a group of non-Christians have been allowed to place a display on the capitol grounds explaining the significance of the winter solstice. Last year the Arkansas Society of Freethinkers asked the Arkansas Secretary of State for permission to erect a display and were refused the opportunity. This year, they again asked permission and again, were denied. So they filed suit through the ACLU.

And WON!

This, in a place where the State Constitution makes discrimination against atheists legal!

You don’t believe me? See Article 19, Section 1 of the Arkansas Constitution:

“No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.”

Last February a rational thinking legislator tried to get a resolution passed to pave the way to repealing that section of the Constitution, but, sadly, it went nowhere.

But hope springs eternal. Perhaps even Arkansas will someday be seen as progressive, or at least not medieval.

The Patriot Act Is Dealt a Blow

“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.” – U.S. Const. Amend. IV.

On March 11, 2004, 191 people were killed and more than 1600 were injured when bombs placed by terrorists exploded on a Madrid, Spain, commuter train. Latent fingerprints were lifted from a suspicious plastic bag, and Interpol sent digital photos of them to the FBI in Quantico, Virginia.

No matches were found in the FBI’s database until higher resolution digital photos were sent the next day. This time, 20 potential matches were returned with respect to one of the latent prints. The FBI was able to pull names, addresses, sex, race, birth dates, and Social Security numbers for the 20 potential matches, and performed background checks on each of them.

Brandon Mayfield, a 38 year old practicing lawyer living near Portland, Oregon with his wife and three children, was ranked number 4 on the list of potential matches for the latent print. Mayfield had not been outside the US since 1994 (he didn’t even have a current passport), and had never been arrested for a crime.

A supervisor in the department that matches fingerprints decided that Mayfield’s prints matched the latent print. For verification, as the FBI sometimes does, independent confirmation was sought. The person who confirmed the match was a former FBI employee who had been reprimanded several times for falsely or erroneously matching fingerprints. He knew that the FBI had already made the match, and he was aware that Mayfield was a practicing Muslim. Because there were less than 12 points at which the latent print and Mayfield’s prints matched, a third analyst also reconfirmed the match. The second reconfirmation was also tainted by the fact that the third examiners knew that the first two had made the match and by the knowledge that Mayfield was Muslim.

The FBI began surveillance of Mayfield and his family. They followed then to the mosque they attended, to the children’s school, to Mayfield’s law office, and to family activities. Attorney General John Ashcroft personally applied to the Foreign Intelligence Security Court (FISC) for an order to permit placing bugs in the private rooms of the Mayfields’ home. While waiting for the FISC order, the FBI went ahead and placed the taps on phones both in the home and in Brandon Mayfield’s law office. They began gathering information about the Mayfields from other people. They also did “sneak and peek” entries into the home and law office, entering, but not removing anything. The Mayfields detected the entry and believed they had been burglarized.

Three weeks later the FBI sent Mayfield’s prints to Spain. In the meantime, several Moroccan immigrants to Spain had been arrested in connection with the bombing. There was no connection between the Moroccans and Mayfield. The Spanish authorities examined the fingerprints and found too many dissimilarities, so notified the FBI that there was no match. The Spanish authorities had the original latent prints, not digital photos of them, for comparison purposes. A formal report from Spain to the FBI followed. Not to be deterred, the FBI sent agents to Spain, but the Spanish authorities were firm. There was no match of Mayfield’s prints to the latent print.

The FBI was still determined to connect Brandon Mayfield to the Madrid bombing. In support of its request for a warrant to arrest Mayfield as a material witness to the bombing, an FBI agent swore in an affidavit that the FBI had determined Mayfield’s prints and the latent print were a 100% match. No mention was made of the Spanish conclusion that the prints were not a match. The affidavit also emphasized Mayfield’s religion and ties to the Muslim community.

Once he was arrested, Mayfield vehemently protested his innocence, but an independent fingerprint examiner selected by Mayfield and his lawyers also determined that the prints were a match.

Thanks to broad search warrants for the Mayfield home and law office, computer files, papers, and even the Mayfield children’s homework was seized by the FBI. Mayfield was held incommunicado in a detention facility, and he and his family were told that he was to be charged with crimes punishable by death. They were told that there was a 100% match between his fingerprints and those found in Madrid. The FBI and the Department of Justice leaked information about the arrest to the press, and there were international headlines proclaiming Brandon Mayfield to be involved in the Madrid bombing.

Two weeks after his arrest, Spain notified the FBI that it had matched the latent print in question with an Algerian. Spain specifically notified the news media that the print did not match Mayfield’s. Mayfield was released from detention the next day, but was ordered to remain on home detention for the next several days.

At least eight federal agencies, the CIA, the National Security Council, the Department of Defense, Homeland Security, the Department of Justice, the FBI, the Department of the Treasury, and the NSA, now have “photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.” – Mayfield v. United States (CIV. 04-1427-AA, p. 23), ___ F.Supp. ___ (26 Sept., 2007).

It’s not surprising given this chain of events that Brandon Mayfield, his wife, and their three children sued the federal government.

The USA PATRIOT Act allowed the federal government to conduct secret surveillance of Brandon Mayfield and his family based entirely on the misidentification of that latent fingerprint, even after Spain had determined there was no match. The unconstitutionality of the Foreign Intelligence Security Act (FISA) as amended by the USAPATRIOT Act was the subject of a decision by one of Oregon’s federal judges this week.

The USAPATRIOT Act modified the FISA, 50 USC §§ 1801 et seq., to allow the federal government to conduct secret surveillance of U.S. citizens without having to meet the requirements of the 4th Amendment to the U.S. Constitution against unreasonable search and seizure, and against warrantless searches and seizures.

Until 2001, when the federal government sought a warrant under FISA, a high ranking member of the intelligence community, such as the Director of the FBI, was required to certify that the primary purpose of the surveillance was to obtain foreign intelligence information. With passage of the USAPATRIOT Act, that standard is changed. The government now needs only to claim that foreign intelligence gathering is merely a significant purpose of the surveillance. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). Because of the USAPATRIOT Act, FISA surveillance orders can be obtained even if the government’s primary purpose is to gather evidence of local, domestic criminal activity.

What does this mean? Passage of the USAPATRIOT Act meant that for the first time since 1791, when the Bill of Rights was adopted, the government could conduct searches and seizures without showing that a crime was either contemplated or had already been committed. It means that the federal government can avoid the probable cause requirement of the Fourth Amendment by merely alleging that part of the reason for the search and seizure is related to foreign intelligence gathering.

The government doesn’t have to suspect its target of any criminal activity at all, so long as gathering foreign intelligence is claimed as part of the reason for the search. The government only has to make a nexus of some sort between foreign terrorism or international espionage and the targeted person or place, and the approval for surveillance is granted under FISA. There doesn’t have to be any specific activity that the government is concerned about, unlike in the Fourth Amendment searches and seizures, where the affidavits and resulting warrants have to be specific as to the information to be sought and seized.

FISA allows surveillance to continue for four months at a time, whereas similar activity in the context of a normal criminal investigation is only allowed to continue for 30 days.

Furthermore, the government can retain the information obtained in the search without notifying the target of the search. Under the Fourth Amendment, the target of the search not only knows there has been a search but has been officially served with a warrant for it, and can challenge the validity of the warrant and the underlying affidavits in court. No such judicial challenge is available under FISA. Unless there is a criminal prosecution under FISA, the target may never know that the government has been watching him, tapping his phones, following him to work, or copying documents or records he thought were private.

The Oregon Federal District Court was mindful of the conflict between preserving the constitutional rights of Americans and the need for national safety and security. It was also mindful that the United States Supreme Court had already determined that the Executive Branch’s arguments to be specious “that ‘internal security matters are too subtle and complex for judicial evaluation’ and that ‘prior judicial approval will fracture the secrecy essential to official intelligence gathering.’” United States v. United States District Court, 407 U.S. 297, 320 (1972).

In 2002, the seven federal judges who are allowed to issue warrants for FISA surveillance – the only seven people in the country who have that power – issued a unanimous opinion finding that the procedures for obtaining approval for surveillance under FISA after passage of the USAPATRIOT Act were improper because they appeared to be geared toward law enforcement purposes rather than toward foreign intelligence gathering.

The U.S. government appealed. The FISCR, the court that reviews any appeals from the FISA court, reversed the unanimous decision of those seven judges. The government was the only party allowed to argue the case even though a number of entities had filed briefs as amicus curiae (friends of the court), urging the appellate court to uphold the ruling of the FISC judges. Only the government is allowed to ask the United States Supreme Court to review appeals from the FISCR.

This week, in striking down the relevant portions of FISA as amended by the USAPATRIOT Act, the Oregon District Court said:

It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.
. . .
[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

Thank you, Judge Ann Aiken.

Read the entire decision here: Mayfield v. United States

‘Well! That wasn’t very Christian!’

Recently I have read blogs about topics that either called for religious responses or were about religion – which is perfectly fine, don’t get me wrong – but in a couple of cases I was left with the feeling that either the specific post or the comments in response to the post were sanctimoniously narrow-minded. This never fails to get under my skin.

No offense to its followers, but it really bugs the bejeezus out of me when someone appears to claim that Christianity has the corner on the market of good and charitable acts.

I’m not going to publicize what my religion is. There are exactly four people on my friends list who know what it is, and three of them are closely related to me. I don’t talk about religion a lot, but I do study it. I study it mainly because I tend to study anything controversial, and religion is one of the most controversial things out there. I don’t tend to talk about it much because I never know who’s going to get hacked off thinking that I’m blasting their precious dogma.

So, with the intent of blasting no one’s dogmata with nuclear weapons, here I go, talking about religion. (I know, I should prepare to get blasted myself.)

Fact: There are many different religions practiced on this planet.

According to Wikipedia, the dominant religions and the numbers of their adherents are:

1. Christianity 2.1 billion
2. Islam 1.3 billion
3. Secular/Atheist/Irreligious/Agnostic/Nontheist 1.1 billion
4. Hinduism 900 million
5. Buddhism 708 million
6. Chinese folk religion 394 million
7. Primal indigenous (“Pagan”) 300 million
8. African traditional and diasporic 100 million
9. Sikhism 23 million
10. Juche 19 million
11. Spiritism 15 million
12. Judaism 14 million
13. Bahá’í Faith 7 million
14. Jainism 4.2 million
15. Shinto 4 million (see below)
16. Cao Dai 4 million
17. Zoroastrianism 2.6 million
18. Tenrikyo 2 million
19. Neo-Paganism 1 million
20. Unitarian Universalism 800,000
21. Rastafari movement 600,000

Yes, Christianity has the largest following of any religion. However, more people in the world are non-Christian than Christian. This is something many Christians just don’t seem to appreciate when they blithely talk about something not being the “Christian” thing to do. Oh, the ignorant arrogance of that statement!

Think about this:

Fact: Every religion, without exception, provides a moral framework for its adherents.

Fact: That moral framework is virtually identical to that of every other religion.

Ergo: All religions are virtually identical in their morality.

When I hear the phrase, “That wasn’t very Christian!” it is usually with the sound of judgment ringing in my ears. The speaker has just measured someone else’s conduct or words and found them lacking. Likewise, when someone says, “I’m a Christian, so I wouldn’t _________” (fill in the blank with your own imagination), they are also normally passing judgment on someone they find to be behaving inappropriately.

If every religion teaches the same moral rules, how is it that Christianity has a corner on the morals market? The answer is, of course, that it doesn’t. What’s worse for Christianity is that those people passing judgment are doing one of the very things their religion teaches that they should not do: the are judging. I hear either of these two phrases and I assume, from that point forward, that the speaker is a hypocrite.

I have heard an argument that this country was established on Christian values and morals. I respectfully disagree with that assessment. Even a casual reading of what was recorded in The Federalist Papers on this subject will enlighten us. The framers of the Constitution and the Bill of Rights wrote the establishment clause to give Americans freedom of religion, as well as freedom from it. Not all of the founding fathers were religious men, and at least one was publically an atheist.

School prayer has been a big issue for many Christians. It is challenged only rarely, but always by parents who do not want to have religion thrust down the throats of their children.

As long as there are tests in school, there will be school prayer – just not necessarily praying out loud. We should remember, though, that unless our children go to a school connected with a specific religion, the children there are of many faiths, and not just the Judeo-Christian-Muslim traditions that worship the same god. Yes, that god is the one worshipped by the most people in this country. But there are Buddhist and Hindu children in our schools, too. Wiccans send their children to school. So do Unitarians. And there are plenty of children who are not being instructed in any form of religion.

What is the function of religion? Basically, religions exist to provide that moral framework I mentioned. It’s something all religions have in common. The tenets of each religion may be different, but the basics are the same. Religions instruct us how to get along with other people in a society.

Most of our morality is actually codified as law, but there are still issues of fairness that simply can’t be codified. Those uncodified morals are the ones we have to make choices about in daily life. Sometimes they can be condemned as situational ethics, which is another entire area of contention, and maybe the subject of another blog. But as for the morality that is not part of the law, we should remember that teaching morals is the province of parents, not the school system. If we want our children to have honor and integrity, we must teach them those things at home. If we want them to be compassionate and generous, we must teach them that at home. If we want them to be faithful to their spouses, nurturing to their children, and keep their flower beds tended as adults, we as parents must teach them that those things are important.

And we should also teach them that when the neighbor parks his boat on our petunias, the neighbor is not being un-Christian, he is being rude and troublesome. No religion would condone such behavior. For that matter, no society would.

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