It isn't often that I post news stories on this site. But now that you've read parts 1 and 2 of my series, you already understand the current federal laws and the implications of the proposed changes:
The Obama administration is quietly dusting off an effort to impose new federal quarantine regulations, which were vigorously resisted by civil liberties organizations and the airline industry when the rules were first proposed by the Bush administration nearly four years ago.
White House officials aren’t saying what their rules might ultimately require. But the previous administration proposed giving the federal government the authority to order a “provisional quarantine” of three business days — or up to six calendar days — for those suspected of having swine flu or other illnesses listed in a presidential executive order.
The Bush-era proposal would also have required airlines and cruise lines to store more information about domestic and international passengers, such as e-mail addresses, traveling companions and return flight information. The information would be subject to review by federal officials in a health emergency, though it would be voluntary for passengers to provide the data.
Read more: http://www.politico.com/news/stories/0809/25814.html#ixzz0PKRzrfXb
Wednesday, August 26, 2009
Tuesday, August 25, 2009
Can the Federal Government Force Vaccination or Quarantine? A Brief Addendum, Regarding Presidential Executive Orders
In my research I am seeing a lot of buzz about two Presidential Executive Orders--13375 and 13295--which are supposed to empower the federal government to force vaccinations or quarantine on the infected. I believe there is much misinformation about these orders.
Executive Order 13295 was signed first, in April, 2003, by President George Bush. This order sets forth a “revised list of quarantinable communicable diseases.” The order, according to Section I, is “based upon the recommendation of the Secretary of Health and Human Services (the "Secretary"), in consultation with the Surgeon General, and for the purpose of specifying certain communicable diseases for regulations providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases…” The order goes on to specify which communicable diseases warrant quarantine, which includes smallpox, tuberculosis, and hemorrhagic viral fevers such as Marburg and Ebola.
The important part of this order is Section 3: “The functions of the President under sections 362 and 364(a) of the Public Health Service Act (42 U.S.C. 265 and 267(a)) are assigned to the Secretary.” In other words, the President is giving authority to the Secretary of Health and Human Services--and this order does not supercede the sections of the United States Code which I have already discussed. This portion of the Code only gives HHS and the Surgeon General authority to quarantine and examine persons from foreign countries or who are traveling from state to state who are believed to be infected. These are hardly the sweeping powers that many imagine.
Presidential Executive Order 13375 was signed by President Bush in March, 2005. This order adds to the list “influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic.” The order still operates within the context of 42 USC 264.
Let me not minimize the potential for civil liberties abuse here. The first question is which influenza viruses qualify to be considered a pandemic. According to the CDC, influenza is the eighth leading cause of death in the United States, and estimates of the number of deaths from influenza range from 36,000 to 56,000 per year. Swine flu, in contrast, has only killed 522 people in the United States this year. Would an imposition of forced quarantine be warranted under these conditions?
Of course, the law under 42 USC 264 is only meant to be part of the nation’s response to a pandemic outbreak of infectious disease. The United States Code under these conditions would only serve as a means of “lockdown” for the country, as all infected persons would be restricted from arriving in this country from abroad, and would also be restricted from traveling from state to state. The state laws would have an even more profound effect on the everyday lives of Americans during a time of pandemic, as we will discover.
References:
Presidential Executive Order 13295: Revised List of Quarantinable Communicable Diseases
http://www.cdc.gov/ncidod/sars/executiveorder040403.htm
Presidential Executive Order 13375: Amendment to Executive Order 13295 Relating to Certain Influenza Viruses and Quarantinable Communicable Diseases
http://edocket.access.gpo.gov/cfr_2006/janqtr/pdf/3CFR13375.pdf
“Influenza Deaths,” article, Science-Based Medicine:
http://www.sciencebasedmedicine.org/?p=320
CDC’s FASTSTATS page, leading causes of death
http://www.cdc.gov/nchs/FASTATS/lcod.htm
AFP, 25 August 2009: “Swine Flu Could Cause as Many as 90,000 US Deaths”
http://www.google.com/hostednews/afp/article/ALeqM5gqvEkGkY4TBfZMle20OrrsW5H9PQ
Executive Order 13295 was signed first, in April, 2003, by President George Bush. This order sets forth a “revised list of quarantinable communicable diseases.” The order, according to Section I, is “based upon the recommendation of the Secretary of Health and Human Services (the "Secretary"), in consultation with the Surgeon General, and for the purpose of specifying certain communicable diseases for regulations providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases…” The order goes on to specify which communicable diseases warrant quarantine, which includes smallpox, tuberculosis, and hemorrhagic viral fevers such as Marburg and Ebola.
The important part of this order is Section 3: “The functions of the President under sections 362 and 364(a) of the Public Health Service Act (42 U.S.C. 265 and 267(a)) are assigned to the Secretary.” In other words, the President is giving authority to the Secretary of Health and Human Services--and this order does not supercede the sections of the United States Code which I have already discussed. This portion of the Code only gives HHS and the Surgeon General authority to quarantine and examine persons from foreign countries or who are traveling from state to state who are believed to be infected. These are hardly the sweeping powers that many imagine.
Presidential Executive Order 13375 was signed by President Bush in March, 2005. This order adds to the list “influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic.” The order still operates within the context of 42 USC 264.
Let me not minimize the potential for civil liberties abuse here. The first question is which influenza viruses qualify to be considered a pandemic. According to the CDC, influenza is the eighth leading cause of death in the United States, and estimates of the number of deaths from influenza range from 36,000 to 56,000 per year. Swine flu, in contrast, has only killed 522 people in the United States this year. Would an imposition of forced quarantine be warranted under these conditions?
Of course, the law under 42 USC 264 is only meant to be part of the nation’s response to a pandemic outbreak of infectious disease. The United States Code under these conditions would only serve as a means of “lockdown” for the country, as all infected persons would be restricted from arriving in this country from abroad, and would also be restricted from traveling from state to state. The state laws would have an even more profound effect on the everyday lives of Americans during a time of pandemic, as we will discover.
References:
Presidential Executive Order 13295: Revised List of Quarantinable Communicable Diseases
http://www.cdc.gov/ncidod/sars/executiveorder040403.htm
Presidential Executive Order 13375: Amendment to Executive Order 13295 Relating to Certain Influenza Viruses and Quarantinable Communicable Diseases
http://edocket.access.gpo.gov/cfr_2006/janqtr/pdf/3CFR13375.pdf
“Influenza Deaths,” article, Science-Based Medicine:
http://www.sciencebasedmedicine.org/?p=320
CDC’s FASTSTATS page, leading causes of death
http://www.cdc.gov/nchs/FASTATS/lcod.htm
AFP, 25 August 2009: “Swine Flu Could Cause as Many as 90,000 US Deaths”
http://www.google.com/hostednews/afp/article/ALeqM5gqvEkGkY4TBfZMle20OrrsW5H9PQ
Monday, August 24, 2009
Can the Federal Government Force Vaccination or Quarantine?
Fears mount over infectious disease. Avian and swine influenzas, SARS, and the possibility of biological attack have figured in the headlines since the 9/11 attacks. Whether these represent a serious danger to the public, or are crises manufactured for the benefit of the government, is a question I will not attempt to answer here. What interests me is the relationship between the goals of public health officials and the civil liberties of the individual--and I am willing to bet it is anything but a comfortable relationship. This is a new area of research for me, and I amazed at the breadth and complexity of this subject.
So I will start small in this article. Can the federal government force an infected person to be vaccinated or quarantined?
Some of the answer to this lies in the United States Code, section 42, part 264, entitled “Regulations to Control Communicable Diseases.” This section of the Code empowers the Surgeon General and the Secretary of the Department of Health and Human Services (*not* the DHS, as some bloggers have reported in error) to apprehend, detain, or examine individuals who are “reasonably believed to be infected with a communicable disease in a qualifying stage.”
“Apprehend” and “detain” clearly refer to quarantine. “Examine,” of course, refers to what a health professional might do to an individual to determine whether he or she is infected with a communicable disease. This part of the Code says nothing about treating a person with a communicable disease, much less forcing the vaccination of an infected person.
This law also does little to define what a communicable disease is, or what constitutes “reasonable belief” that a person is infected. Many laws are written this way; they assume only the standard of a “reasonable” person, or, in this case, the standard of the “reasonable” health care provider. “Qualifying stage” is a stage of the disease which describes either a “communicable stage” of the disease or a “precommunicable stage,” “if the disease would be likely to cause a public health emergency if transmitted to other individuals.” I assume that a person with a precommunicable stage of a disease could still be diagnosed with a disease, but, obviously, the ability to diagnose persons with diseases in a precommunicable stage may very well vary from disease to disease, as different diseases manifest themselves with different symptoms, and different methods are used when testing to determine a particular diagnosis. What impact these differences have on the civil liberties of people who are potentially infected, I do not know, but this may be an interesting question for further study.
What *is* interesting about this portion of the Code is that it shows unusual respect for the Commerce Clause of the U.S. Constitution. The power of the federal government to quarantine infected persons is strictly limited to two major groups of people: those who are “coming into a State or possession from a foreign country or a possession,” or those who, “while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.” Article I, section 8 of the U.S. Constitution says that the federal government can only “regulate Commerce with foreign Nations, and among the several States…” This is why federal law can only force the quarantine or medical examination of people coming from foreign countries or traveling between states, territories, or the District of Columbia.
Laws regarding forced vaccination or treatment of persons believed to be infected with a communicable disease, then, would need to be state laws. In a future article, I will examine Maryland’s laws regarding pandemics and communicable diseases as an example. But in my next article I will be discussing a controversial act--the Model State Emergency Health Powers Act--that is not legislation from any particular state, but was intended to serve as a model for legislation for all fifty states. And *this* is an act that should make civil libertarians very ill indeed. Tune in later this week for more details…
Reference:
42 USC part 264, “Regulations to Control Communicable Diseases”
http://www.law.cornell.edu/uscode/42/usc_sec_42_00000264----000-.html
So I will start small in this article. Can the federal government force an infected person to be vaccinated or quarantined?
Some of the answer to this lies in the United States Code, section 42, part 264, entitled “Regulations to Control Communicable Diseases.” This section of the Code empowers the Surgeon General and the Secretary of the Department of Health and Human Services (*not* the DHS, as some bloggers have reported in error) to apprehend, detain, or examine individuals who are “reasonably believed to be infected with a communicable disease in a qualifying stage.”
“Apprehend” and “detain” clearly refer to quarantine. “Examine,” of course, refers to what a health professional might do to an individual to determine whether he or she is infected with a communicable disease. This part of the Code says nothing about treating a person with a communicable disease, much less forcing the vaccination of an infected person.
This law also does little to define what a communicable disease is, or what constitutes “reasonable belief” that a person is infected. Many laws are written this way; they assume only the standard of a “reasonable” person, or, in this case, the standard of the “reasonable” health care provider. “Qualifying stage” is a stage of the disease which describes either a “communicable stage” of the disease or a “precommunicable stage,” “if the disease would be likely to cause a public health emergency if transmitted to other individuals.” I assume that a person with a precommunicable stage of a disease could still be diagnosed with a disease, but, obviously, the ability to diagnose persons with diseases in a precommunicable stage may very well vary from disease to disease, as different diseases manifest themselves with different symptoms, and different methods are used when testing to determine a particular diagnosis. What impact these differences have on the civil liberties of people who are potentially infected, I do not know, but this may be an interesting question for further study.
What *is* interesting about this portion of the Code is that it shows unusual respect for the Commerce Clause of the U.S. Constitution. The power of the federal government to quarantine infected persons is strictly limited to two major groups of people: those who are “coming into a State or possession from a foreign country or a possession,” or those who, “while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.” Article I, section 8 of the U.S. Constitution says that the federal government can only “regulate Commerce with foreign Nations, and among the several States…” This is why federal law can only force the quarantine or medical examination of people coming from foreign countries or traveling between states, territories, or the District of Columbia.
Laws regarding forced vaccination or treatment of persons believed to be infected with a communicable disease, then, would need to be state laws. In a future article, I will examine Maryland’s laws regarding pandemics and communicable diseases as an example. But in my next article I will be discussing a controversial act--the Model State Emergency Health Powers Act--that is not legislation from any particular state, but was intended to serve as a model for legislation for all fifty states. And *this* is an act that should make civil libertarians very ill indeed. Tune in later this week for more details…
Reference:
42 USC part 264, “Regulations to Control Communicable Diseases”
http://www.law.cornell.edu/uscode/42/usc_sec_42_00000264----000-.html
Monday, August 17, 2009
A Change in Fortune? The ACLU Seeks to Overturn Fortunetelling Ban in Bethesda
Nick Nefedro, a Gypsy fortuneteller with shops in California and Florida, decided he would like to open up a shop closer to home. Like any businessman, he looked for space to rent and applied for a business license.
He sought to open his shop in Bethesda, Maryland, a DC suburb, but his license was denied because fortunetelling is illegal there. In fact, every time he offers his services of predicting the future, a 200 dollar fine and a misdemeanor conviction is a foreseeable possibility.
What the county did not foresee was Nefedro’s response. He filed suit in 2008 in Montgomery County District Court, naming the county executive as defendant. In December of that year, the Court upheld the law, saying that it should be kept in place to prevent “fraud.” But this did not stop Nefedro, who felt that he was being discriminated against as a Gypsy, so he contacted the ACLU for further assistance.
Both sides miss the essential point here. It is silly to keep this type of law on the books because fraud is already illegal, and there are already laws which make it so. According to Clifford Royalty, zoning division chief of the Montgomery County Attorney’s office, (quoted here from the Washington Post), “The practice is fraudulent because no one can forecast the future.” But is it up to the county to decide if the future can be foretold at all?
Nefedro, alleging discrimination, also misses a much more effective defense of his practice. The ACLU correctly sees this as a matter of free speech…and all forms of speech, even those considered by many to be foolish or even fraudulent, are protected under the First Amendment of the Constitution.
The Tarot is an old form of divination, and in the hands of a sensitive and knowledgeable reader, is less a tool for fortunetelling, but used as “a basis for stimulating self-awareness, personal growth, and inner transformation” (Sandra Thomson, p. 4). The symbols on the Tarot cards open the mind to the archetypal, universal stories of the seeker, the lover, feminity and masculinity, dreamers and magicians, and countless other stories that resonate deep within every person. A modern psychologist would call this imagery Jungian, but the themes are as old as humanity.
Whether or not we believe a Tarot reader to be psychic, or able to predict the future, is perhaps not relevant; he or she speaks the language of this imagery, and this is what is being communicated to a client during a psychic “reading.” Why people pay for such a service is not the business of the Montgomery County zoning board.
For some people, it is deeply satisfying to feel part of a larger, symbolic universe. Some seek this wisdom through the Tarot. Others seek it in literature. Shakespeare, for example, uses many of the same themes as Tarot. No one suggests that we ban Shakespeare in the park because it also speaks to us across the centuries-- many indeed are so mesmerized by it that they are willing to pay to be similarly deceived.
Seen in this way, Tarot is another form of free expression and should be protected under the First Amendment. The association of this form of expression with Gypsies--often the victims of negative stereotypes--and with fortunetelling parlors in less affluent neighborhoods is not reason enough to exclude their business from Bethesda or anywhere else in Montgomery County. Unlike the universal themes of Tarot and literature, which are still relevant to us even today, these antiquated laws banning fortunetelling should be banned themselves, as they are rightfully superseded under our Constitution.
References:
“ACLU to challenge county's fortunetelling ban”
http://www.gazette.net/stories/07102009/montnew110900_32542.shtml
“Man Challenges Ban on Fortunetelling: Self Described Gypsy Who Wants to Open Shop Says Law is Biased”
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/16/AR2009081601840.html
Thomson, Sandra A. Pictures From the Heart: A Tarot Dictionary. New York: St. Martin’s Griffin, 2003.
He sought to open his shop in Bethesda, Maryland, a DC suburb, but his license was denied because fortunetelling is illegal there. In fact, every time he offers his services of predicting the future, a 200 dollar fine and a misdemeanor conviction is a foreseeable possibility.
What the county did not foresee was Nefedro’s response. He filed suit in 2008 in Montgomery County District Court, naming the county executive as defendant. In December of that year, the Court upheld the law, saying that it should be kept in place to prevent “fraud.” But this did not stop Nefedro, who felt that he was being discriminated against as a Gypsy, so he contacted the ACLU for further assistance.
Both sides miss the essential point here. It is silly to keep this type of law on the books because fraud is already illegal, and there are already laws which make it so. According to Clifford Royalty, zoning division chief of the Montgomery County Attorney’s office, (quoted here from the Washington Post), “The practice is fraudulent because no one can forecast the future.” But is it up to the county to decide if the future can be foretold at all?
Nefedro, alleging discrimination, also misses a much more effective defense of his practice. The ACLU correctly sees this as a matter of free speech…and all forms of speech, even those considered by many to be foolish or even fraudulent, are protected under the First Amendment of the Constitution.
The Tarot is an old form of divination, and in the hands of a sensitive and knowledgeable reader, is less a tool for fortunetelling, but used as “a basis for stimulating self-awareness, personal growth, and inner transformation” (Sandra Thomson, p. 4). The symbols on the Tarot cards open the mind to the archetypal, universal stories of the seeker, the lover, feminity and masculinity, dreamers and magicians, and countless other stories that resonate deep within every person. A modern psychologist would call this imagery Jungian, but the themes are as old as humanity.
Whether or not we believe a Tarot reader to be psychic, or able to predict the future, is perhaps not relevant; he or she speaks the language of this imagery, and this is what is being communicated to a client during a psychic “reading.” Why people pay for such a service is not the business of the Montgomery County zoning board.
For some people, it is deeply satisfying to feel part of a larger, symbolic universe. Some seek this wisdom through the Tarot. Others seek it in literature. Shakespeare, for example, uses many of the same themes as Tarot. No one suggests that we ban Shakespeare in the park because it also speaks to us across the centuries-- many indeed are so mesmerized by it that they are willing to pay to be similarly deceived.
Seen in this way, Tarot is another form of free expression and should be protected under the First Amendment. The association of this form of expression with Gypsies--often the victims of negative stereotypes--and with fortunetelling parlors in less affluent neighborhoods is not reason enough to exclude their business from Bethesda or anywhere else in Montgomery County. Unlike the universal themes of Tarot and literature, which are still relevant to us even today, these antiquated laws banning fortunetelling should be banned themselves, as they are rightfully superseded under our Constitution.
References:
“ACLU to challenge county's fortunetelling ban”
http://www.gazette.net/stories/07102009/montnew110900_32542.shtml
“Man Challenges Ban on Fortunetelling: Self Described Gypsy Who Wants to Open Shop Says Law is Biased”
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/16/AR2009081601840.html
Thomson, Sandra A. Pictures From the Heart: A Tarot Dictionary. New York: St. Martin’s Griffin, 2003.
Friday, August 14, 2009
A Need for Sources: House Resolution 404, an FOIA Request, and Janet Napolitano’s “Rightwing Extremism” Report
The story should be familiar by now. Back in March, the Missouri Information and Analysis Center produced a report called “The Modern Militia Movement,” which profiled Constitutionalists, voters for third-party candidates, and voters for Republican presidential candidate Ron Paul as potential terrorists. The three candidates--Bob Barr, Chuck Baldwin, and Ron Paul--insisted upon and received an apology from the State of Missouri. The Missouri House of Representatives is now considering House Bill 1138, which would establish oversight over the MIAC fusion center. Surely the lesson has been learned--that profiling political groups is not constitutional, and that writing reports like these does not make us safer.
But the reports keep coming, this time from the Department of Homeland Security. Another report, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” profiles virtually the same groups, but this time, no apology is forthcoming and there is no redaction of information. Indeed, despite the articulately worded title, DHS has overlooked something important when it decided to write this report.
I’m in the information business. Where I work, there is one important rule. Cite your sources. The more the better. The more *reliable* the sources are, the better your research is.
Representative Peter King of New York has sponsored House Resolution 404, which would give the Department of Homeland Security two weeks to reveal the sources of its “Rightwing Extremism” report. According to King, DHS released this report in defiance of advice given by DHS’ own Office of Civil Rights and Civil Liberties…and, indeed, the resolution asks for “any written opinion or guidance produced” by this office.
The other issue concerns DHS’s Office of Intelligence and Analysis. This resolution would also examine the sources of the information collected by this office and how it was disseminated to “State, local, and tribal law enforcement.” Why is this important? The Office of Intelligence and Analysis provides information from DHS to the fusion centers. And the fusion centers give information to more local law enforcement about potential terrorists.
Although House Resolution 404 had been recommended by the House Committee on Homeland Security for a vote and had been placed on the House Calendar as of June 4th, the resolution still has not come to the floor for consideration. Understandably, distractions such as the healthcare bill and events such as the von Brunn Holocaust Museum shooting may have caused many in Congress to delay consideration of this resolution.
There is, however, another intervening factor…one which perhaps makes King’s request a superfluous one. A group called Americans for Limited Government filed a Freedom of Information Act Request on April 17th, also asking for the sources used in the DHS “Rightwing Extremism” report. A partial list of the sources has already been released. The sources are thin indeed. Many of them describe police shootings by mentally disturbed people, *not* the organized actions of militias. One prominent source is the Southern Poverty Law Center, an organization which has already unfairly connected persons on the right with hate groups and is surely not unbiased. If these sources are representative of the kind of research DHS does, Napolitano has a bit of explaining to do.
And while she’s at it, could she please explain why she continues to write reports in defiance of the Code of Federal Regulations, which prohibits law enforcement from collecting information about persons based solely on their political beliefs?
It is most enigmatic, the question of why Representative Peter King has interested himself in this issue. King is also the sponsor of HR 2159, “Denying Firearms and Explosives to Dangerous Terrorists Act of 2009,” which would not allow suspected terrorists to purchase a firearm. And how would the FBI, who runs the National Instant Criminal Background Check Database--required to be checked by federal firearms dealers--decide who is a potential terrorist? Since the FBI is a partner organization with the fusion centers, the profiles DHS outlines in its “Rightwing Extremism” report could be used to determine who is a “suspected terrorist.” Even if House Resolution 404 passes, the information from the “Rightwing Extremism” report can still be used by law enforcement to harass dissidents, since asking for its sources is not the same thing as noticing its unconstitutionality or asking for its redaction. If Rep. King is looking for a way to tame his guilty conscience, he should be warned that House Resolution 404 will do little to soothe the beasts on the right.
References:
U.S. Department of Homeland Security. “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.”
http://www.fas.org/irp/eprint/rightwing.pdf
House Resolution 404
http://www.opencongress.org/bill/111-hr404/show
Department of Homeland Security Office of Information and Analysis
http://www.dhs.gov/xabout/structure/gc_1220886590914.shtm
Americans for Limited Government FOIA
http://www.getliberty.org/files/DHS-FOIARequest.pdf
Interim Response, Americans for Limited Government FOIA
http://www.getliberty.org/files/09-502%20Interim%20Response%201.pdf
Summary of Web Sources provided in response to the FOIA
http://www.getliberty.org/files/09-502%20Interim%20Response%20Website%20Links.pdf
Code of Federal Regulations, Title 28, part 23: Criminal Intelligence Operating Systems. 23.20: Operating Principles
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=14e8514960058e4223f57e3cb933acfb&rgn=div8&view=text&node=28:1.0.1.1.24.0.4.4&idno=28
HR 2159, “Denying Firearms and Explosives to Dangerous Terrorists Act of 2009”
http://www.opencongress.org/bill/111-h2159/show
Critique of FBI databases, HR 2159: “Rightwing in the Crosshairs” (in case you missed it!)
http://periculosae.blogspot.com/2009/07/rightwing-in-crosshairs-hr-2159-denying.html
But the reports keep coming, this time from the Department of Homeland Security. Another report, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” profiles virtually the same groups, but this time, no apology is forthcoming and there is no redaction of information. Indeed, despite the articulately worded title, DHS has overlooked something important when it decided to write this report.
I’m in the information business. Where I work, there is one important rule. Cite your sources. The more the better. The more *reliable* the sources are, the better your research is.
Representative Peter King of New York has sponsored House Resolution 404, which would give the Department of Homeland Security two weeks to reveal the sources of its “Rightwing Extremism” report. According to King, DHS released this report in defiance of advice given by DHS’ own Office of Civil Rights and Civil Liberties…and, indeed, the resolution asks for “any written opinion or guidance produced” by this office.
The other issue concerns DHS’s Office of Intelligence and Analysis. This resolution would also examine the sources of the information collected by this office and how it was disseminated to “State, local, and tribal law enforcement.” Why is this important? The Office of Intelligence and Analysis provides information from DHS to the fusion centers. And the fusion centers give information to more local law enforcement about potential terrorists.
Although House Resolution 404 had been recommended by the House Committee on Homeland Security for a vote and had been placed on the House Calendar as of June 4th, the resolution still has not come to the floor for consideration. Understandably, distractions such as the healthcare bill and events such as the von Brunn Holocaust Museum shooting may have caused many in Congress to delay consideration of this resolution.
There is, however, another intervening factor…one which perhaps makes King’s request a superfluous one. A group called Americans for Limited Government filed a Freedom of Information Act Request on April 17th, also asking for the sources used in the DHS “Rightwing Extremism” report. A partial list of the sources has already been released. The sources are thin indeed. Many of them describe police shootings by mentally disturbed people, *not* the organized actions of militias. One prominent source is the Southern Poverty Law Center, an organization which has already unfairly connected persons on the right with hate groups and is surely not unbiased. If these sources are representative of the kind of research DHS does, Napolitano has a bit of explaining to do.
And while she’s at it, could she please explain why she continues to write reports in defiance of the Code of Federal Regulations, which prohibits law enforcement from collecting information about persons based solely on their political beliefs?
It is most enigmatic, the question of why Representative Peter King has interested himself in this issue. King is also the sponsor of HR 2159, “Denying Firearms and Explosives to Dangerous Terrorists Act of 2009,” which would not allow suspected terrorists to purchase a firearm. And how would the FBI, who runs the National Instant Criminal Background Check Database--required to be checked by federal firearms dealers--decide who is a potential terrorist? Since the FBI is a partner organization with the fusion centers, the profiles DHS outlines in its “Rightwing Extremism” report could be used to determine who is a “suspected terrorist.” Even if House Resolution 404 passes, the information from the “Rightwing Extremism” report can still be used by law enforcement to harass dissidents, since asking for its sources is not the same thing as noticing its unconstitutionality or asking for its redaction. If Rep. King is looking for a way to tame his guilty conscience, he should be warned that House Resolution 404 will do little to soothe the beasts on the right.
References:
U.S. Department of Homeland Security. “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.”
http://www.fas.org/irp/eprint/rightwing.pdf
House Resolution 404
http://www.opencongress.org/bill/111-hr404/show
Department of Homeland Security Office of Information and Analysis
http://www.dhs.gov/xabout/structure/gc_1220886590914.shtm
Americans for Limited Government FOIA
http://www.getliberty.org/files/DHS-FOIARequest.pdf
Interim Response, Americans for Limited Government FOIA
http://www.getliberty.org/files/09-502%20Interim%20Response%201.pdf
Summary of Web Sources provided in response to the FOIA
http://www.getliberty.org/files/09-502%20Interim%20Response%20Website%20Links.pdf
Code of Federal Regulations, Title 28, part 23: Criminal Intelligence Operating Systems. 23.20: Operating Principles
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=14e8514960058e4223f57e3cb933acfb&rgn=div8&view=text&node=28:1.0.1.1.24.0.4.4&idno=28
HR 2159, “Denying Firearms and Explosives to Dangerous Terrorists Act of 2009”
http://www.opencongress.org/bill/111-h2159/show
Critique of FBI databases, HR 2159: “Rightwing in the Crosshairs” (in case you missed it!)
http://periculosae.blogspot.com/2009/07/rightwing-in-crosshairs-hr-2159-denying.html
Monday, August 10, 2009
Missing in Action: Obama's Privacy and Civil Liberties Board
They get stars in their eyes and a little sniffly, these friends of mine who voted for Obama, when they recall Inauguration Day. What a wonderful day it was here in Northeast Baltimore. All of Harford Road was decked out with American flags, the businesses had the whole spectacle on the television--there was even an Inauguration Day raffle for a basketful of local goodies. Ah, yes, this was the fitting death of the injustices of the Bush Administration. All the troops would soon be coming home and it would be the end of the oppressions of the Patriot Act. Civil liberties would be reborn, many assured me.
So the troops have not come home. Obama supports the suspension of habeas corpus for “enemy combatants” detained in Afghanistan. He wants to end the right of a defendant to ask for a lawyer when being questioned. His Homeland Security chief, Janet Napolitano, puts out multiple reports profiling dissidents on the far left and the far right as potential terrorists. And now the White House website has a special snitch line for concerned citizens to report those who are against the healthcare bill. The Patriot Act is alive and well under the new administration.
And now we can add the sneakiest of sins to this catalog of violations, that of the sin of omission. According to ProPublica, which tracks such things, the website of the Executive Office of the White House no longer mentions the Privacy and Civil Liberties Oversight Board. Another site, PolitiFact, is reporting that the board has received funding, but the Obama administration has taken no action to appoint members. PolitiFact also says that a White House report on Cyberspace Policy released in May said it was "important to reconstitute the board" and "accelerate the selection process for its board members and consider whether to seek legislative amendments to broaden its scope to include cybersecurity-related issues." Given Obama’s desire to establish a cybersecurity czar who would be given sweeping powers over the internet in times of crisis and who might employ the NSA in monitoring perceived threats, this odd disappearance of the Privacy and Civil Liberties Oversight Board is worrisome.
Today’s resignation of Melissa Hathaway, the previous top contender for the position of Cybersecurity Czar, gives this question special urgency. Obama proposed the establishment of this position and then delayed naming the appointee…perhaps because of other distractions, such as the healthcare bill. The need to name a successor will put this issue in his mind again. And the recent disappearance of the Privacy and Civil Liberties Oversight Board, is, well, suspicious. What tinkering is going on behind the scenes?
ProPublica on the White House Privacy and Civil Liberties Oversight Board:
http://www.propublica.org/ion/changetracker/item/disappearance-of-privacy-board-from-whitehouse-website-raises-questions-714
PolitiFact on the White House Privacy and Civil Liberties Oversight Board:
http://www.politifact.com/truth-o-meter/promises/promise/509/give-the-white-houses-privacy-and-civil-liberties/
Melissa Hathaway resignation:
http://www.computerworld.com/s/article/341778/Hathaway_Resigns_From_Cybersecurity_Czar_Post
So the troops have not come home. Obama supports the suspension of habeas corpus for “enemy combatants” detained in Afghanistan. He wants to end the right of a defendant to ask for a lawyer when being questioned. His Homeland Security chief, Janet Napolitano, puts out multiple reports profiling dissidents on the far left and the far right as potential terrorists. And now the White House website has a special snitch line for concerned citizens to report those who are against the healthcare bill. The Patriot Act is alive and well under the new administration.
And now we can add the sneakiest of sins to this catalog of violations, that of the sin of omission. According to ProPublica, which tracks such things, the website of the Executive Office of the White House no longer mentions the Privacy and Civil Liberties Oversight Board. Another site, PolitiFact, is reporting that the board has received funding, but the Obama administration has taken no action to appoint members. PolitiFact also says that a White House report on Cyberspace Policy released in May said it was "important to reconstitute the board" and "accelerate the selection process for its board members and consider whether to seek legislative amendments to broaden its scope to include cybersecurity-related issues." Given Obama’s desire to establish a cybersecurity czar who would be given sweeping powers over the internet in times of crisis and who might employ the NSA in monitoring perceived threats, this odd disappearance of the Privacy and Civil Liberties Oversight Board is worrisome.
Today’s resignation of Melissa Hathaway, the previous top contender for the position of Cybersecurity Czar, gives this question special urgency. Obama proposed the establishment of this position and then delayed naming the appointee…perhaps because of other distractions, such as the healthcare bill. The need to name a successor will put this issue in his mind again. And the recent disappearance of the Privacy and Civil Liberties Oversight Board, is, well, suspicious. What tinkering is going on behind the scenes?
ProPublica on the White House Privacy and Civil Liberties Oversight Board:
http://www.propublica.org/ion/changetracker/item/disappearance-of-privacy-board-from-whitehouse-website-raises-questions-714
PolitiFact on the White House Privacy and Civil Liberties Oversight Board:
http://www.politifact.com/truth-o-meter/promises/promise/509/give-the-white-houses-privacy-and-civil-liberties/
Melissa Hathaway resignation:
http://www.computerworld.com/s/article/341778/Hathaway_Resigns_From_Cybersecurity_Czar_Post
Friday, August 7, 2009
Choice I Can’t Afford: HR 3200, “America’s Affordable Health Choices Act”
Now, I have to admit, I haven’t read or thought much about the current healthcare system we are in, nor thought especially deeply about the government’s attempt to take it over. I’m just a little civil liberties blogger, and issues this big are, well, a bit difficult to wrap one’s mind around, so I have not chosen to write of it here.
Word on the street is that the White House is especially interested in bloggers who have negative things to say about the Democrats’ proposed healthcare bill. They are combing the Internet looking for the naysayers. While of course this is not censorship, this smells a lot like the use of fear to silence the dissenters. And *that* is solidly in my territory, so yes, I have something to say. You have sent me the engraved invitation…and as my mother taught me, it’s impolite to ignore such a request.
Healthcare spending is usually portrayed as some vampire on the U.S. economy, sucking out its lifeblood and depriving millions of the basic care they need. By the White House’s own estimates, medical spending accounts for 18% of the economy. While other industries dry up as they are superseded by technology or move out of the country, spending on healthcare grows apace, like a healthy weed shooting up from an otherwise dying garden.
In the meantime, the government, like a hungry Leviathan, needs more money to do the work of smothering us all to death with laws and regulations, most of them not dreamt of by the framers of our Constitution. In the last six months the worm has swallowed up the stock market and the banking industry and the automobile industry. The worm still seeks its surfeit of money, and gosh, a good place to get some more would be the healthcare industry, the healthy, growing, and free place that it is. One could argue that this is a portion of the economy that is producing the most…and the Leviathan cannot sleep, jealous that it does not own this means of production as well.
Owning the means of production…where have I heard this phrase? Oh, bother, it escapes me.
Let me pause to point out our government’s stunning successes when it takes over business that once was privately conducted in this country. Amtrak, Medicare, Medicaid, Social Security? If not run inefficiently or corruptly, these experiments have either had to be bailed out or are on the verge of financial collapse.
The worm is also envious of our freedoms, and the ironically named “America’s Affordable Health Choices Act” (HR 3200) promises to deprive us of the freedoms we once shared only with our physicians and our families. Now, I must admit, I did not read the more than 1,000 pages of this bill; indeed, the massive thing damn near froze my computer completely. I had to rely on the kindnesses of my fellow bloggers who are already privileged enough to be on the White House’s list of dissenters.
Let’s go first to page 429, part of a series of pages which describes the requirement for an “Advance Care Planning Consultation” for all Medicare patients. Isn’t it all so helpful, requiring one’s healthcare practitioner to discuss end of life issues with an older patient? Of course we should all be going to our families and our attorneys and drafting a living will, but now our practitioners will be specifically asking if we have done this, and, if we have not, referring us to ”a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, advance care planning clearinghouses, and State legal service organizations…” (pp. 425-426). The practitioner is also to provide information about end of life issues such as hospice care, and the withholding of food, water, and antibiotics.
So we have a planting of a seed, and the probing for information. Presumably, this practitioner is equipped with the ubiquitous clipboard and will be recording your discussion. And what of clearinghouses? What information will be recorded? And how long will each individual get to truly consider his or her choices before the ultimate decision is recorded in the medical record?
If you have read other entries in this blog, perhaps you know my mistrust of government databases. Information often is not accurate. Information is shared from agency to agency without our knowledge, and sometimes misunderstandings are freely propagated, often as the result of profiling of entire groups of American dissidents. Indeed, my blogger friends are telling me that HR 3200 proposes the creation of a National ID Health Card (on page 58)…and the Leviathan will also gain access to our personal and financial information (page 195).
Now that they own this means of production, they will concern themselves with whether we are productive. This bill would also allow the Agency for Healthcare Research and Quality to determine what treatments would be most cost-effective under nationalized health care…a kind of “medical rationing,” if you will. Sorry, fellow bloggers who have claimed that this agency would be established under this bill. This agency already exists. I am thinking their powers would be expanded if HR 3200 passes.
Now this is a 1,000 page bill and I have only brought up a few points…surely a few sticking points should not invalidate an otherwise good bill. A responsible blogger should take the time to read the entire bill, as I am sure all the members of Congress have done. But I boldly make this statement. These points are violative enough of our civil liberties that I don’t give a damn what else is in this bill. Opening up our end of life plans to doctors working for the public dime is not my idea of freedom. Sharing my financial information with officials empowered to make decisions about the medical care of myself and my family is not freedom or “choice.” And entrusting my medical information to a government who has already shown itself to be untrustworthy in maintaining and sharing other types of information about us does not seem to be a good exchange for more “affordable” health care. Sorry, Obama and Congress. Put me on the list of dissenters.
Report me here: flag@whitehouse.gov
Word on the street is that the White House is especially interested in bloggers who have negative things to say about the Democrats’ proposed healthcare bill. They are combing the Internet looking for the naysayers. While of course this is not censorship, this smells a lot like the use of fear to silence the dissenters. And *that* is solidly in my territory, so yes, I have something to say. You have sent me the engraved invitation…and as my mother taught me, it’s impolite to ignore such a request.
Healthcare spending is usually portrayed as some vampire on the U.S. economy, sucking out its lifeblood and depriving millions of the basic care they need. By the White House’s own estimates, medical spending accounts for 18% of the economy. While other industries dry up as they are superseded by technology or move out of the country, spending on healthcare grows apace, like a healthy weed shooting up from an otherwise dying garden.
In the meantime, the government, like a hungry Leviathan, needs more money to do the work of smothering us all to death with laws and regulations, most of them not dreamt of by the framers of our Constitution. In the last six months the worm has swallowed up the stock market and the banking industry and the automobile industry. The worm still seeks its surfeit of money, and gosh, a good place to get some more would be the healthcare industry, the healthy, growing, and free place that it is. One could argue that this is a portion of the economy that is producing the most…and the Leviathan cannot sleep, jealous that it does not own this means of production as well.
Owning the means of production…where have I heard this phrase? Oh, bother, it escapes me.
Let me pause to point out our government’s stunning successes when it takes over business that once was privately conducted in this country. Amtrak, Medicare, Medicaid, Social Security? If not run inefficiently or corruptly, these experiments have either had to be bailed out or are on the verge of financial collapse.
The worm is also envious of our freedoms, and the ironically named “America’s Affordable Health Choices Act” (HR 3200) promises to deprive us of the freedoms we once shared only with our physicians and our families. Now, I must admit, I did not read the more than 1,000 pages of this bill; indeed, the massive thing damn near froze my computer completely. I had to rely on the kindnesses of my fellow bloggers who are already privileged enough to be on the White House’s list of dissenters.
Let’s go first to page 429, part of a series of pages which describes the requirement for an “Advance Care Planning Consultation” for all Medicare patients. Isn’t it all so helpful, requiring one’s healthcare practitioner to discuss end of life issues with an older patient? Of course we should all be going to our families and our attorneys and drafting a living will, but now our practitioners will be specifically asking if we have done this, and, if we have not, referring us to ”a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, advance care planning clearinghouses, and State legal service organizations…” (pp. 425-426). The practitioner is also to provide information about end of life issues such as hospice care, and the withholding of food, water, and antibiotics.
So we have a planting of a seed, and the probing for information. Presumably, this practitioner is equipped with the ubiquitous clipboard and will be recording your discussion. And what of clearinghouses? What information will be recorded? And how long will each individual get to truly consider his or her choices before the ultimate decision is recorded in the medical record?
If you have read other entries in this blog, perhaps you know my mistrust of government databases. Information often is not accurate. Information is shared from agency to agency without our knowledge, and sometimes misunderstandings are freely propagated, often as the result of profiling of entire groups of American dissidents. Indeed, my blogger friends are telling me that HR 3200 proposes the creation of a National ID Health Card (on page 58)…and the Leviathan will also gain access to our personal and financial information (page 195).
Now that they own this means of production, they will concern themselves with whether we are productive. This bill would also allow the Agency for Healthcare Research and Quality to determine what treatments would be most cost-effective under nationalized health care…a kind of “medical rationing,” if you will. Sorry, fellow bloggers who have claimed that this agency would be established under this bill. This agency already exists. I am thinking their powers would be expanded if HR 3200 passes.
Now this is a 1,000 page bill and I have only brought up a few points…surely a few sticking points should not invalidate an otherwise good bill. A responsible blogger should take the time to read the entire bill, as I am sure all the members of Congress have done. But I boldly make this statement. These points are violative enough of our civil liberties that I don’t give a damn what else is in this bill. Opening up our end of life plans to doctors working for the public dime is not my idea of freedom. Sharing my financial information with officials empowered to make decisions about the medical care of myself and my family is not freedom or “choice.” And entrusting my medical information to a government who has already shown itself to be untrustworthy in maintaining and sharing other types of information about us does not seem to be a good exchange for more “affordable” health care. Sorry, Obama and Congress. Put me on the list of dissenters.
Report me here: flag@whitehouse.gov
Wednesday, August 5, 2009
Silent Pictures No More--Camera Phone Predator Alert Act, HR 414
Down at the library on D Street in DC, a researcher is furtively taking pictures. She ignores the sign at the library, the one that says “no photography; use our crappy photocopiers for 10 cents a page instead” and turns off the sound to her cell phone. The librarian at the reference desk bows his head. Silently she steals the images of dead ancestors and historical documents, in defiance of a rule she does not agree with.
Down on the other end of the Mall, Representative Peter King of New York wants to ensure this perverted practice will come to an end. Photographs of family Bibles and dusty museum cases and the pensions of old war heroes? Photos at your local gym? Fourteen year old girls in their underwear at the K-Mart dressing room? Peter King is going to keep you from photographing all of that, unless you would like to announce your intentions with a loud click. The innocent and the guilty all would be affected by his law, which would require cell phones to make a sound when they are used as cameras.
Read the bill here.
http://www.opencongress.org/bill/111-h414/show
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