The Battle in the States: Freedom Vs. Protection

April 2, 2009

By Tom DeWeese and Mark Lerner

Across the nation, state legislatures are struggling to take back their Constitutional rights as they also seek ways to protect us from outside threats. This has led to some near schizophrenic legislative sessions with laws swinging widely from left to right.

Making it more difficult to get a handle on the situation is the fact that there has been an outgrowth of near “rabid” anti-immigration groups that have sprung up demanding near-Hitler-style tactics to “fix” the problem. While the situation is certainly serious and demands action, these groups openly admit that they are willing to surrender their liberties if that is what it takes to end illegal immigration. They may deeply regret that cavalier dismissal of liberty. Once lost, it is rarely regained.

To address these issues, three very distinct, but widely variant legislative actions have appeared in the states.

First, legislation dealing with protecting the integrity of the Tenth Amendment and state sovereignty has been introduced across the nation, passing in at least 21 states. The states are reacting to the frightening growth of the federal government through anti-terrorist legislation such as the Patriot Act and Real ID, as well as the outrageous spending included in the bailout and stimulus bills.

Second, to address the illegal immigration issue, legislation in many states would provide state law enforcement with the ability to share information through direct electronic access. Many law-enforcement agencies are eagerly supporting such legislation. Yet, this type of legislation clearly contradicts the intent of the states sovereignty effort.

Third, again racing back to the other side to protect personal privacy from federal surveillance, there is legislation introduced to prohibit the collection of biometric samples/data, social security numbers and the use of RFID chips in state driver’s licenses.

One might ask, what do these pieces of legislation have to do with one another? They each go to the heart of a battle being waged across our country to decide how much Constitutional power the federal government has to collect, retain and share the personal information of each citizen, and how much power it has to force states to provide it?

Tenth Amendment legislation is exactly what the name implies – that states have Constitutionally-guaranteed rights and powers. It puts the federal government on notice that states will not act as its surrogates. The legislation unequivocally tells the federal government that its power comes from the citizens and the states and that federal powers are limited and defined rather than unlimited and arbitrary.

Fusion Centers

As for those patriots who believe the illegal immigration is so dire that liberty should be thrown on the bonfire, perhaps they need to better understand what they are demanding.

Legislation introduced in several state legislatures, and currently in debate, allows state and local law-enforcement agencies to have direct access to one another’s databases. Some of the anti-immigration patriots might see it is as prudent legislation until one takes a closer look.

Most states now have Fusion Centers. Fusion Centers were originally intended to allow local and state law-enforcement to work alongside federal officers so that activity suspected of being terrorist related could be identified and responded to by all three law enforcement entities in a coordinated manner. Fusion Centers have representatives of all three working side-by-side in one office.

Fusion Centers are funded primarily by the federal government. Some believe them to be an effective tool to fight terrorism with little that one could find objectionable. The problem is, Fusion Centers have overstepped their intended purpose. This is typical when dealing with the issue of technology and invasive databases. Mission creep is just too easy.

In state after state we see Fusion Centers focusing on all suspected criminal activity, including misdemeanors. Some would ask you to believe that the mountain of information about citizens being accumulated actually stays within the borders of a state unless a citizen is suspected of terrorist activity. However, the Fusion Center in Oklahoma has been directed to develop procedures for the sharing of information with the FBI and DHS.

This means that direct electronic access is not limited to just state law enforcement agencies and departments. Since local, state and federal authorities are working together, there is no plausible reason to believe federal law enforcement will not gain access to all information a state law enforcement or local law enforcement authority would have.

The Missouri Outrage

All citizens should take note of a document produced in Missouri by that state’s Fusion Center. That document targeted activists, including supporters of Ron Paul, Chuck Baldwin and Bob Barr. It directed Missouri law enforcement to give special attention to those holding such political beliefs and consider them to be a security risk and potential domestic terrorists. According to the same document, members of militias should also be singled out. According to the Missouri report, anyone advocating limited government and objecting to the massive growth of the federal government is to be considered a security risk.

Whether a citizen is a Democrat, Republican or Independent, the idea that citizens supporting their candidate of choice should be categorized as domestic terrorists is outrageous. The document is so inflammatory that the Lt. Governor of Missouri suspended the head state law enforcement officer in the Fusion Center. It is also worth noting that the Oklahoma Fusion Center will develop privacy protocols. One might reasonably ask why the privacy issues were not fully addressed before the Fusion Center became operational?

However, the issue of the collecting, retaining and sharing of citizen’s personal information is not unique to Fusion Centers. Law enforcement in each state has information sharing agreements, not only with federal agencies/departments, but also with foreign entities and international organizations.

There is a literal web of Memorandums of Agreements, laws and other mechanisms such as participation in international organizations that has entrapped all Americans. The most personal and sensitive information of Americans is being shared globally.

Oklahoma’s SB 483

A prime example of such dangerous legislation that could lead to an international surveillance state is Oklahoma’s SB 483, which will authorize the Commissioner of Public Safety (DPS) the authority to enter into “agreements” with other state agencies and allow these other agencies “direct electronic access” to the DPS database of computerized photos.

Moreover, the Federal Department of Homeland Security is targeting such state databanks and clearly has stated it wants full access to them. It then intends to share them with international databanks. That is why every state must carefully consider the dangerous side-effects of such legislation being promoted as simply an answer to illegal immigration and terrorism.

As Oklahoma State Representative Charles Key says, such legislation is “incrementally putting into place systems that could, 1) violate citizens constitutional rights, 2) unintentionally harm innocent citizens, 3) allow for the continual effective dissolution of our rights enumerated in the Constitution.”

Biometric data and Social Security numbers

The final piece of the puzzle is the third tier of legislation making rounds in several state legislatures that would prohibit state governments from collecting biometric samples/data and social security numbers of citizens who apply for driver’s licenses. In direct opposition to bills such as SB 483, Oklahoma is considering such legislation which calls for the removal of existing biometric information and social security numbers from the state motor vehicle database. Such legislation is intended to protect our personal privacy.

Under the provisions of the Real ID Act of 2005, states that comply with that law are required to collect the digital facial biometric samples of all citizens who apply for a state driver’s license. In layman’s terms, this means you can be identified while walking down the street by a CCTV/surveillance camera. Your facial image would be scanned and the image would be converted to biometric data and compared to images stored in state or federal databases, including your motor vehicle database.

Again, in Oklahoma, some lawmakers have figured out the only way to stop the federal government and international organizations from getting their hands on citizens personal information is to stop collecting the information and putting it in state databases.

It is important to note that the legislation does not impede Oklahoma law enforcement from collecting the information either through a search warrant or as a result of a person being charged with a crime. One lawmaker stated it should not be a “novel” idea that the presumption of innocence is protected or that privacy means something. A Pennsylvania lawmaker stated that we have been told many times since 9/11/2001 what privacy does not mean but we do not hear what it does mean.

Abuse of power by the federal government is and has always been a concern. Our forefathers addressed the potential for abuse in our Constitution. Since the 1950’s we have witnessed many abuses of power including revelations about what the FBI, NSA and DHS have been doing since 9/11/2001, invading personal privacy, monitoring phone calls, home invasion without notice or warrants, etc.

The abuses have become a pattern of complete disregard for our Constitution. Russell Tice, a former NSA analyst who previously worked for Naval Intelligence and the Department of Defense came forward and stated American citizens were having their phone calls intercepted, emails read and financial transactions monitored. He came forward because he said he did not want to live in a police state.

The Inspector General of the Justice Department stated the FBI had abused National Security Letters and obtained information improperly. The Inspector further stated the FBI was not forthright in disclosing all the National Security Letters it had issued. In one three year period alone, the FBI was issuing an average of over 100 of the letters a day. National Security Letters, by their very nature, avoid the need for search warrants. Some in the U.S. Senate have accused DHS of “bullying” states to comply with the Real ID Act 2005. DHS has been asked to adhere to what is known as FIPP (Fair Information Practice Principles) and yet has failed to do so. FIPP requires, among other things, that there be transparency when information is being collected.

Our driver’s licenses are the link between everything we buy and sell. You need a driver’s license for just about everything these days. The vendor who produces 95% of all drivers’ licenses has proposed a Real ID Solutions driver’s license in which a citizens “political party affiliation” would be on the face of the driver’s license. The same vendor, who happens to be the largest biometric company, made their biometric facial recognition technology available to the Red Chinese government. The Communist Chinese did exactly what one would expect from a totalitarian state. They used the technology to identify dissidents — people who were opposed to the policies of the government. Does that sound like the Missouri situation?

Most Americans have never heard of Enhanced Driver’s Licenses. These licenses contain RFID chips that can allow for the tracking of people and also for “bad” guys to obtain your personal information by stealing your unique identification number contained on the chip and linking that number to your identity. The current Secretary of Homeland Security is on record saying she believes that Enhanced Driver’s Licenses should be issued by all states.

Consider DHS’s pilot program that relies on a computer software program to help determine if you present a threat to our government. This pilot computer program, called “Project Hostile Intent,” makes assessments about the way we walk and dress, as well as other behavioral characteristics. The computer program will make a judgment as to whether or not you present a threat. That means when you are walking down the street keep in mind that a camera lens could be pointed at you. Make sure you are dressed “right” and do not walk in a funny manner. What are the chances of you, or someone you care about, being picked out by the camera? Considering the hundred’s of millions of taxpayer dollars that DHS has released for CCTV/surveillance cameras the chances are getting better everyday that you won’t be left out. Cameras are going up so fast that they remind me of the postal mailboxes that used to be placed on about every block. The cameras are everywhere.

America is at a crossroads. States have finally awakened to rediscover their Constitutional powers in the Tenth Amendment, yet as they do so, they are also being pressured to surrender the liberty and privacy of every American in the name of security. Americans are concerned, listening, and are ready to take action. State lawmakers are also ready to listen. All citizens have to do is take a few minutes of their time to contact their state and national lawmakers and say enough is enough.

Terrorist organizations such as Al-Qaeda, Hezbollah and other groups such as Hamas have trained hundred’s of thousands of terrorists. Our intelligence community only knows the names of a very small percentage of these people. The fact is that terrorists do not need driver’s licenses to carry out acts of terrorism. They can use passports and international driver’s licenses while in our country to facilitate their goals. Criminalizing all Americans into a surveillance state is not the answer.

Legislation to protect us from the surveillance state is being considered in state legislatures across the country. Many states are rising up against implementation of Real ID. Others are passing resolutions to take a stand for state sovereignty. But others are going in the opposite direction with legislation to allow massive databanks of our most personal information to be shared internationally.

In Oklahoma there is still time. The same is true in other states. Oklahoma residents should call their elected leaders in the state’s House of Representatives and say they oppose SB 483.

Every American should now call their state representatives and tell them to support Tenth Amendment legislation and any bills that would end the orgy of collecting and sharing of information, starting with citizens’ biometric information and social security numbers.

These new efforts to create a surveillance society represent a threat to almost everything guaranteed in the Bill of Rights, from freedom of speech to freedom to be secure in our homes, to the freedom of being innocent until proven guilty. The time to stop it is now.

Tom DeWeese, President of the American Policy Center and Editor of The DeWeese Report. Mark Lerner, Director of the Stop Real ID Coalition.

Tom DeWeese
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Tom DeWeese is one of the nation’s leading advocates of individual liberty, free enterprise, private property rights, personal privacy, back-to-basics education and American sovereignty and independence.