Intelligence Law School - Course 1: Lesson 3.5.1 Introduction to Individual Rights in U.S. Intelligence Law


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LESSON 3: CONSTITUTIONAL LAW


3.5 The Bill of Rights


3.5.1 Introduction to Individual Rights in U.S. Intelligence Law


Lecture Audio



Annotated Lecture Transcript

3.5.1 Introduction to Individual Rights in U.S. Intelligence Law

As I said at the beginning, there are 27 Amendments to the Constitution.

Whereas the Articles set out the powers of government, the first 10 Amendments set out the rights of individuals against abusive conduct by the government.

The first ten amendments are known as the “Bill of Rights,” and they contain the bulk of the rights we think about when we think about civil liberties.

 

Ø  The 3 Amendments that are Critically Important to U.S. Intelligence Law: As I said before, of the 10 Amendments that make up the Bill of Rights, only 3 have major application in the federal intelligence law context:

o   The 1st Amendment;[1]

o   4th Amendment;[2] and

o   5th Amendment.[3]

 

They’re the only 6 Amendments total that you need to know anything about for purposes of U.S. intelligence law at all—the three I just mentioned as well as 3 others that are tangentially related to intelligence operations:

Ø  The 6th Amendment;[4]

Ø  8th Amendment;[5] and

Ø  14th Amendment.[6]

 

Ø  The 14th Amendment: As I said, the Fourteenth deals primarily with state matters,[7] and the Sixth and Eighth Amendments are only tangentially related to intelligence.

Ø  The 8th Amendment: The Eighth Amendment gives you the right not to be tortured by intelligence personnel.[8]

Ø  The 6th Amendment: And the Sixth Amendment gives you the right not to be subject to custodial interrogation without an attorney.[9]

o   This is why you should always refuse to be interviewed by the police, and always request an attorney upon any interaction with police.

o   You’re not entitled to an attorney until you are in custody, so also always be sure to ask if you are “free to leave” after telling the officers that you do not want to answer any questions without an attorney.

o   Asking if you are free to leave will force the officers to decide whether to arrest you or let you go.[10]

o   If they arrest you at this point, then they were going to arrest you anyway, so no harm done.[11]

§  You can’t talk your way out of getting arrested.

§  You will always only do considerable damage to yourself and your case by speaking to the police.

§  This is especially so if you’re an innocent First Amendment target and they need to interview you in order to use your statements to manufacture a charge of “lying to investigators” or some other questionable charge against you.

§  Lying to investigators is a real favorite for cops and prosecutors going after Americans who haven’t committed any crimes, but who they really want to see incarcerated.

o   Simple rules to keep you free:

§  1st Rule - Never agree to be interviewed by the police, especially if you’re innocent, and even if they claim to be targeting somebody else.

·         This is a ruse they often use to get you to make the mistake of talking to them and once you’ve answered any questions at all, they can always claim that you lied to them and prosecute you for lying to investigators.

·         This is even if you were telling the truth.

·         All they have to do is find some evidence—even erroneous evidence—that contradicts anything you’ve said to them and you can be convicted of lying to investigators and sent to prison for up to 5 years.

·         If the investigation deals with terrorism, you can get sent to prison for 7 years. 

§  2nd Rue - Always ask for a lawyer immediately upon interaction with police.

§  3rd Rule - Always say clearly “I do not consent to any searches.”

§  4th Rule – After asking for a lawyer and saying that you do not consent to any searches, always ask if you are “free to leave.”

·         If they say yes, then leave.

·         They may try to make you feel awkward about leaving, or as if they’ll think you’re guilty if you leave, that’s just a tactic.

·         Leave.

·         Don’t say another word, just walk out.

§  5th Rule – Always be polite.

·         Being rude or hostile to cops never helps your situation.

·         Neither does answering their questions.

·         Be polite, but refuse to answer questions without a lawyer, refuse to consent to any searches, and always ask if you’re free to leave.

§  6th Rule – The 6th and final rule is to watch a superb video on YouTube called “Don’t Talk to Cops, Part 1.”[12]

·         It’s an incredible law school lecture by Professor James Duane, a criminal defense attorney who teaches at Regent Law School in Virginia Beach.[13]

·         It is one of the finest law lectures I have ever seen.[14]

·         It should be required viewing for all Americans.[15]

Ø  Criminal Procedure vs. Intelligence Law: These tangentially relevant Amendments deal primarily with criminal procedure issues and aren’t relevant in many cases because intelligence law is usually focused on the collection and use of data against Americans outside of a criminal prosecution setting—an extrajudicial setting involving vaguely defined objectives often involving little more than mindless information gathering of random minutae so it can be collated and stored, analyzed, retrieved, and disseminated if it ever becomes useful.

o   Usually information collection becomes an end in itself, and agents focus insatiably on collecting meaningless data never questioning the usefulness of their enterprise.

o   It’s an industry.

o   And that’s what they get paid to do.

 

Really, there are only 3 amendments that are especially relevant to federal intelligence activities.

They are

Ø  The First;[16]

Ø  Fourth;[17] and

Ø  Fifth Amendments.[18]

That’s it.

 

Ø  The First;[19]

Ø  Fourth;[20] and

Ø  Fifth Amendments.[21]

 

Footnotes

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[2] U.S. Const. amend. IV (“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.”).

[3] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

[4] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”).

[5] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[6] U.S. Const. amend. XIV (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

[7] U.S. Const. amend. XIV (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

[8] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[9] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”).

[10] See generally California v. Hodari D., 499 U.S. 621 (1991).

[11] A police officer cannot legally arrest you without probable cause. If you are placed under arrest after saying nothing to the police and simply refusing to answer questions without a lawyer and asking if you were free to leave, then police had probable cause prior to initiating the interview and you were almost certainly going to be arrested regardless of what you said to them. See generally Brinegar v. United States, 338 U.S. 160 (1949) (explaining that probable cause for an arrest “exists where ‘the facts and circumstances within [the arresting officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed” by the person the officers wish to arrest).

[12] There is a great video on YouTube that I think should be mandatory viewing for all Americans. It is called “Don’t Talk to Cops, Part 1.” This phenomenal lecture was given by criminal law professor James Duane from Regent Law School. It is truly excellent. As a law professor, my hat goes off to Professor Duane. His students are lucky to have such a dynamic and expert presenter teaching them matters of such monumental significance. The video is on YouTube. You really should watch it TODAY! It may very well save your life someday. See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

Most innocent Americans don’t realize that agreeing to be interviewed by the police is one of the biggest mistakes a person can make. They also don’t realize until it’s too late that answering police questions is often a devastating mistake that can never help them and can also never be undone. Once they’ve answered even a single question, they’ve opened themselves up to a charge of “lying to investigators” even if they told the truth. All police have to do once they have a statement is find any evidence at all that contradicts that statement and they have enough for a major felony prosecution carrying a sentence of 5 years in prison—7 years if the investigation had anything to do with terrorism. Even if you were telling the truth you will probably be convicted because it will be your word against the word of usually two upstanding police officers looking polished and professional on the stand. Even if they don’t decide to prosecute you on a bogus charge of lying to investigators, they can use the leverage gained by being able to threaten you with a bogus charge of lying to investigators to force you to spy on your friends and loved ones. The tactic is frequently used against the friends and family members of American First Amendment targets. You should watch Professor Duane’s video “Don’t Talk to Cops – Part 1” on YouTube. As I said before, the advice might just save your life, or at least your freedom someday. See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

[13] See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

[14] See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

[15] See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

[16] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[17] U.S. Const. amend. IV (“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.”).

[18] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

[19] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[20] U.S. Const. amend. IV (“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.”).

[21] U.S. Const. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”) (emphasis added).

 


© 2012 David Alan Jordan. All rights reserved.