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Feel free to copy this article far and wide, but please
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keep my name and this sentence on it.
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The Bill of Rights, a Status Report
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by Eric Postpischil
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4 September 1990
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6 Hamlett Drive, Apt. 17
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Nashua, NH 03062
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edp@jareth.enet.dec.com
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How many rights do you have? You should check, because it
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might not be as many today as it was a few years ago, or
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even a few months ago. Some people I talk to are not
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concerned that police will execute a search warrant without
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knocking or that they set up roadblocks and stop and
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interrogate innocent citizens. They do not regard these as
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great infringements on their rights. But when you put
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current events together, there is information that may be
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surprising to people who have not yet been concerned: The
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amount of the Bill of Rights that is under attack is
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alarming.
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Let's take a look at the Bill of Rights and see which
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aspects are being pushed on or threatened. The point here
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is not the degree of each attack or its rightness or
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wrongness, but the sheer number of rights that are under
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attack.
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Amendment I
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Congress shall make no law respecting an
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establishment of religion, or prohibiting the
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free exercise thereof; or abridging the freedom
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of speech, or of the press; or the right of the
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people peaceably to assemble, and to petition the
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Government for a redress of grievances.
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ESTABLISHING RELIGION: While campaigning for his first
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term, George Bush said "I don't know that atheists should
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be considered as citizens, nor should they be considered
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patriots." Bush has not retracted, commented on, or
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clarified this statement, in spite of requests to do so.
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According to Bush, this is one nation under God. And
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apparently if you are not within Bush's religious beliefs,
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you are not a citizen. Federal, state, and local
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governments also promote a particular religion (or,
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occasionally, religions) by spending public money on
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religious displays.
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FREE EXERCISE OF RELIGION: Robert Newmeyer and Glenn
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Braunstein were jailed in 1988 for refusing to stand in
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respect for a judge. Braunstein says the tradition of
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rising in court started decades ago when judges entered
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carrying Bibles. Since judges no longer carry Bibles,
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Braunstein says there is no reason to stand -- and his
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Bible tells him to honor no other God. For this religious
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practice, Newmeyer and Braunstein were jailed and are now
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suing.
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FREE SPEECH: We find that technology has given the
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government an excuse to interfere with free speech.
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Claiming that radio frequencies are a limited resource, the
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government tells broadcasters what to say (such as news and
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public and local service programming) and what not to say
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(obscenity, as defined by the Federal Communications
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Commission [FCC]). The FCC is investigating Boston PBS
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station WGBH-TV for broadcasting photographs from the
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Mapplethorpe exhibit.
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FREE SPEECH: There are also laws to limit political
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statements and contributions to political activities. In
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1985, the Michigan Chamber of Commerce wanted to take out
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an advertisement supporting a candidate in the state house
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of representatives. But a 1976 Michigan law prohibits a
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corporation from using its general treasury funds to make
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independent expenditures in a political campaign. In
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March, the Supreme Court upheld that law. According to
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dissenting Justice Kennedy, it is now a felony in Michigan
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for the Sierra Club, the American Civil Liberties Union, or
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the Chamber of Commerce to advise the public how a
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candidate voted on issues of urgent concern to their
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members.
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FREE PRESS: As in speech, technology has provided another
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excuse for government intrusion in the press. If you
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distribute a magazine electronically and do not print
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copies, the government doesn't consider you a press and
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does not give you the same protections courts have extended
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to printed news. The equipment used to publish Phrack, a
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worldwide electronic magazine about phones and hacking, was
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confiscated after publishing a document copied from a Bell
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South computer entitled "A Bell South Standard Practice
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(BSP) 660-225-104SV Control Office Administration of
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Enhanced 911 Services for Special Services and Major
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Account Centers, March, 1988." All of the information in
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this document was publicly available from Bell South in
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other documents. The government has not alleged that the
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publisher of Phrack, Craig Neidorf, was involved with or
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participated in the copying of the document. Also, the
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person who copied this document from telephone company
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computers placed a copy on a bulletin board run by Rich
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Andrews. Andrews forwarded a copy to AT&T officials and
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cooperated with authorities fully. In return, the Secret
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Service (SS) confiscated Andrews' computer along with all
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the mail and data that were on it. Andrews was not charged
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with any crime.
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FREE PRESS: In another incident that would be comical if
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it were not true, on March 1 the SS ransacked the offices
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of Steve Jackson Games (SJG); irreparably damaged property;
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and confiscated three computers, two laser printers,
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several hard disks, and many boxes of paper and floppy
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disks. The target of the SS operation was to seize all
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copies of a game of fiction called GURPS Cyberpunk. The
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Cyberpunk game contains fictitious break-ins in a
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futuristic world, with no technical information of actual
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use with real computers, nor is it played on computers.
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The SS never filed any charges against SJG but still
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refused to return confiscated property.
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PEACEABLE ASSEMBLY: The right to assemble peaceably is no
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longer free -- you have to get a permit. Even that is not
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enough; some officials have to be sued before they realize
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their reasons for denying a permit are not Constitutional.
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PEACEABLE ASSEMBLY: In Alexandria, Virginia, there is a
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law that prohibits people from loitering for more than
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seven minutes and exchanging small objects. Punishment is
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two years in jail. Consider the scene in jail: "What'd
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you do?" "I was waiting at a bus stop and gave a guy a
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cigarette." This is not an impossible occurrence: In
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Pittsburgh, Eugene Tyler, 15, has been ordered away from
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bus stops by police officers. Sherman Jones, also 15, was
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accosted with a police officer's hands around his neck
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after putting the last bit of pizza crust into his mouth.
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The police suspected him of hiding drugs.
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PETITION FOR REDRESS OF GRIEVANCES: Rounding out the
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attacks on the first amendment, there is a sword hanging
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over the right to petition for redress of grievances.
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House Resolution 4079, the National Drug and Crime
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Emergency Act, tries to "modify" the right to habeas
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corpus. It sets time limits on the right of people in
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custody to petition for redress and also limits the courts
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in which such an appeal may be heard.
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Amendment II
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A well regulated Militia, being necessary to the
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security of a free State, the right of the people
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to keep and bear Arms, shall not be infringed.
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RIGHT TO BEAR ARMS: This amendment is so commonly
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challenged that the movement has its own name: gun
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control. Legislation banning various types of weapons is
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supported with the claim that the weapons are not for
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"legitimate" sporting purposes. This is a perversion of
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the right to bear arms for two reasons. First, the basis
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of freedom is not that permission to do legitimate things
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is granted to the people, but rather that the government is
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empowered to do a limited number of legitimate things --
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everything else people are free to do; they do not need to
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justify their choices. Second, should the need for defense
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arise, it will not be hordes of deer that the security of a
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free state needs to be defended from. Defense would be
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needed against humans, whether external invaders or
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internal oppressors. It is an unfortunate fact of life
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that the guns that would be needed to defend the security
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of a state are guns to attack people, not guns for sporting
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purposes.
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Firearms regulations also empower local officials, such as
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police chiefs, to grant or deny permits. This results in
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towns where only friends of people in the right places are
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granted permits, or towns where women are generally denied
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the right to carry a weapon for self-defense.
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Amendment III
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No Soldier shall, in time of peace be quartered
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in any house, without the consent of the Owner,
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nor in time of war, but in a manner to be
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prescribed by law.
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QUARTERING SOLDIERS: This amendment is fairly clean so
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far, but it is not entirely safe. Recently, 200 troops in
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camouflage dress with M-16s and helicopters swept through
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Kings Ridge National Forest in Humboldt County, California.
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In the process of searching for marijuana plants for four
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days, soldiers assaulted people on private land with M-16s
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and barred them from their own property. This might not be
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a direct hit on the third amendment, but the disregard for
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private property is uncomfortably close.
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Amendment IV
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The right of the people to be secure in their
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persons, houses, papers and effects, against
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unreasonable searches and seizures, shall not be
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violated, and no Warrants shall issue, but upon
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probable cause, supported by Oath or affirmation,
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and particularly describing the place to be
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searched, and the persons or things to be seized.
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RIGHT TO BE SECURE IN PERSONS, HOUSES, PAPERS AND EFFECTS
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AGAINST UNREASONABLE SEARCHES AND SEIZURES: The RICO law
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is making a mockery of the right to be secure from seizure.
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Entire stores of books or videotapes have been confiscated
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based upon the presence of some sexually explicit items.
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Bars, restaurants, or houses are taken from the owners
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because employees or tenants sold drugs. In Volusia
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County, Florida, Sheriff Robert Vogel and his officers stop
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automobiles for contrived violations. If large amounts of
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cash are found, the police confiscate it on the PRESUMPTION
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that it is drug money -- even if there is no other evidence
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and no charges are filed against the car's occupants. The
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victims can get their money back only if they prove the
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money was obtained legally. One couple got their money
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back by proving it was an insurance settlement. Two other
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men who tried to get their two thousand dollars back were
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denied by the Florida courts.
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RIGHT TO BE SECURE IN PERSONS, HOUSES, PAPERS AND EFFECTS
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AGAINST UNREASONABLE SEARCHES AND SEIZURES: A new law goes
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into effect in Oklahoma on January 1, 1991. All property,
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real and personal, is taxable, and citizens are required to
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list all their personal property for tax assessors,
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including household furniture, gold and silver plate,
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musical instruments, watches, jewelry, and personal,
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private, or professional libraries. If a citizen refuses
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to list their property or is suspected of not listing
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something, the law directs the assessor to visit and enter
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the premises, getting a search warrant if necessary. Being
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required to tell the state everything you own is not being
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secure in one's home and effects.
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NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED
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BY OATH OR AFFIRMATION: As a supporting oath or
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affirmation, reports of anonymous informants are accepted.
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This practice has been condoned by the Supreme Court.
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PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED AND
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PERSONS OR THINGS TO BE SEIZED: Today's warrants do not
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particularly describe the things to be seized -- they list
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things that might be present. For example, if police are
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making a drug raid, they will list weapons as things to be
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searched for and seized. This is done not because the
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police know of any weapons and can particularly describe
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them, but because they allege people with drugs often have
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weapons.
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Both of the above apply to the warrant the Hudson, New
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Hampshire, police used when they broke down Bruce Lavoie's
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door at 5 a.m. with guns drawn and shot and killed him.
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The warrant claimed information from an anonymous
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informant, and it said, among other things, that guns were
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to be seized. The mention of guns in the warrant was used
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as reason to enter with guns drawn. Bruce Lavoie had no
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guns. Bruce Lavoie was not secure from unreasonable search
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and seizure -- nor is anybody else.
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Other infringements on the fourth amendment include
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roadblocks and the Boston Police detention of people based
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on colors they are wearing (supposedly indicating gang
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membership). And in Pittsburgh again, Eugene Tyler was
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once searched because he was wearing sweat pants and a
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plaid shirt -- police told him they heard many drug dealers
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at that time were wearing sweat pants and plaid shirts.
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Amendment V
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No person shall be held to answer for a capital,
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or otherwise infamous crime, unless on a
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presentment or indictment of a Grand Jury, except
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in cases arising in the land or naval forces, or
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in the Militia, when in actual service in time of
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War or public danger; nor shall any person be
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subject to the same offence to be twice put in
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jeopardy of life or limb; nor shall be compelled
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in any criminal case to be a witness against
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himself, nor be deprived of life, liberty, or
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property, without due process of law; nor shall
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private property be taken for public use without
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just compensation.
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INDICTMENT OF A GRAND JURY: Kevin Bjornson has been
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proprietor of Hydro-Tech for nearly a decade and is a
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leading authority on hydroponic technology and cultivation.
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On October 26, 1989, both locations of Hydro-Tech were
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raided by the Drug Enforcement Administration. National
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Drug Control Policy Director William Bennett has declared
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that some indoor lighting and hydroponic equipment is
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purchased by marijuana growers, so retailers and
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wholesalers of such equipment are drug profiteers and
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co-conspirators. Bjornson was not charged with any crime,
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nor subpoenaed, issued a warrant, or arrested. No illegal
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substances were found on his premises. Federal officials
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were unable to convince grand juries to indict Bjornson.
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By February, they had called scores of witnesses and
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recalled many two or three times, but none of the grand
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juries they convened decided there was reason to criminally
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prosecute Bjornson. In spite of that, as of March, his
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bank accounts were still frozen and none of the inventories
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or records had been returned. Grand juries refused to
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indict Bjornson, but the government is still penalizing
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him.
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TWICE PUT IN JEOPARDY OF LIFE OR LIMB: Members of the
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McMartin family in California have been tried two or three
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times for child abuse. Anthony Barnaby was tried for
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murder (without evidence linking him to the crime) three
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times before New Hampshire let him go.
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COMPELLED TO BE A WITNESS AGAINST HIMSELF: Oliver North
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was forced to testify against himself. Congress granted
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him immunity from having anything he said to them being
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used as evidence against him, and then they required him to
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talk. After he did so, what he said was used to find other
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evidence which was used against him. The courts also play
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games where you can be required to testify against yourself
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if you testify at all.
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COMPELLED TO BE A WITNESS AGAINST HIMSELF: In the New York
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Central Park assault case, three people were found guilty
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of assault. But there was no physical evidence linking
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them to the crime; semen did not match any of the
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defendants. The only evidence the state had was
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confessions. To obtain these confessions, the police
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questioned a 15-year old without a parent present -- which
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is illegal under New York state law. Police also refused
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to let the subject's Big Brother, an attorney for the
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Federal government, see him during questioning. Police
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screamed "You better tell us what we want to hear and
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cooperate or you are going to jail," at 14-year-old Antron
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McCray, according to Bobby McCray, his father. Antron
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McCray "confessed" after his father told him to, so that
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police would release him. These people were coerced into
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bearing witness against themselves, and those confessions
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were used to convict them.
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COMPELLED TO BE A WITNESS AGAINST HIMSELF: Your answers to
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Census questions are required by law, with a $100 penalty
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for each question not answered. But people have been
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evicted for giving honest Census answers. According to the
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General Accounting Office, one of the most frequent ways
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city governments use census information is to detect
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illegal two-family dwellings. This has happened in
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Montgomery County, Maryland; Pullman, Washington; and Long
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Island, New York. The August 8, 1989, Wall Street Journal
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reports this and other ways Census answers have been used
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against the answerers.
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COMPELLED TO BE A WITNESS AGAINST HIMSELF: Drug tests are
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being required from more and more people, even when there
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is no probable cause, no accident, and no suspicion of drug
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use. Requiring people to take drug tests compels them to
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provide evidence against themselves.
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DEPRIVED OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS
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OF LAW: This clause is violated on each of the items life,
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liberty, and property. Incidents including such violations
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are described elsewhere in this article. Here are two
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more: On March 26, 1987, in Jeffersontown, Kentucky,
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Jeffrey Miles was killed by police officer John Rucker, who
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was looking for a suspected drug dealer. Rucker had been
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sent to the wrong house; Miles was not wanted by police.
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He received no due process. In Detroit, $4,834 was seized
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from a grocery store after dogs detected traces of cocaine
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on three one-dollar bills in a cash register.
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PRIVATE PROPERTY TAKEN FOR PUBLIC USE WITHOUT JUST
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COMPENSATION: RICO is shredding this aspect of the Bill of
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Rights. The money confiscated by Sheriff Vogel goes
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directly into Vogel's budget; it is not regulated by the
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legislature. Federal and local governments seize and
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auction boats, buildings, and other property. Under RICO,
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the government is seizing property without due process.
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The victims are required to prove not only that they are
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not guilty of a crime, but that they are entitled to their
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property. Otherwise, the government auctions off the
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property and keeps the proceeds.
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Amendment VI
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In all criminal prosecutions, the accused shall
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enjoy the right to a speedy and public trial, by
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an impartial jury of the State and district
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wherein the crime shall have been committed,
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which district shall have been previously
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ascertained by law, and to be informed of the
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nature and cause of the accusation; to be
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confronted with the witnesses against him; to
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have compulsory process for obtaining Witnesses
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in his favor, and to have the assistance of
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counsel for his defence.
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THE RIGHT TO A SPEEDY AND PUBLIC TRIAL: Surprisingly, the
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right to a public trial is under attack. When Marion Barry
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was being tried, the prosecution attempted to bar Louis
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Farrakhan and George Stallings from the gallery. This
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request was based on an allegation that they would send
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silent and "impermissible messages" to the jurors. The
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judge initially granted this request. One might argue that
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the whole point of a public trial is to send a message to
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all the participants: The message is that the public is
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watching; the trial had better be fair.
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BY AN IMPARTIAL JURY: The government does not even honor
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the right to trial by an impartial jury. US District Judge
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Edward Rafeedie is investigating improper influence on
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jurors by US marshals in the Enrique Camarena case. US
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marshals apparently illegally communicated with jurors
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during deliberations.
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OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN
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COMMITTED: This is incredible, but Manuel Noriega is being
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tried so far away from the place where he is alleged to
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have committed crimes that the United States had to invade
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another country and overturn a government to get him. Nor
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is this a unique occurrence; in a matter separate from the
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Camarena case, Judge Rafeedie was asked to dismiss charges
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against Mexican gynecologist Dr. Humberto Alvarez Machain
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on the grounds that the doctor was illegally abducted from
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his Guadalajara office in April and turned over to US
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authorities.
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TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION:
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Steve Jackson Games, nearly put out of business by the raid
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described previously, has been stonewalled by the SS. "For
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the past month or so these guys have been insisting the
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book wasn't the target of the raid, but they don't say what
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the target was, or why they were critical of the book, or
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why they won't give it back," Steve Jackson says. "They
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have repeatedly denied we're targets but don't explain why
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we've been made victims." Attorneys for SJG tried to find
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out the basis for the search warrant that led to the raid
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on SJG. But the application for that warrant was sealed by
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order of the court and remained sealed at last report, in
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July. Not only has the SS taken property and nearly
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destroyed a publisher, it will not even explain the nature
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and cause of the accusations that led to the raid.
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TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM: The courts
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are beginning to play fast and loose with the right to
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confront witnesses. Watch out for anonymous witnesses and
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videotaped testimony.
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TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES: Ronald
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Reagan resisted submitting to subpoena and answering
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|
questions about Irangate, claiming matters of national
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|
security and executive privilege. A judge had to dismiss
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|
some charges against Irangate participants because the
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|
government refused to provide information subpoenaed by the
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|
defendants. And one wonders if the government would go
|
|
to the same lengths to obtain witnesses for Manuel Noriega
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|
as it did to capture him.
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|
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TO HAVE THE ASSISTANCE OF COUNSEL: The right to assistance
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|
of counsel took a hit recently. Connecticut Judge Joseph
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Sylvester is refusing to assign public defenders to people
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ACCUSED of drug-related crimes, including drunk driving.
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|
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TO HAVE THE ASSISTANCE OF COUNSEL: RICO is also affecting
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|
the right to have the assistance of counsel. The
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|
government confiscates the money of an accused person,
|
|
which leaves them unable to hire attorneys. The IRS has
|
|
served summonses nationwide to defense attorneys, demanding
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|
the names of clients who paid cash for fees exceeding
|
|
$10,000.
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|
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Amendment VII
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|
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|
In Suits at common law, where the value in
|
|
controversy shall exceed twenty dollars, the
|
|
right of trial by jury shall be preserved, and no
|
|
fact tried by a jury, shall be otherwise
|
|
reexamined in any Court of the United States,
|
|
than according to the rules of common law.
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|
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|
RIGHT OF TRIAL BY JURY IN SUITS AT COMMON LAW: This is a
|
|
simple right; so far the government has not felt threatened
|
|
by it and has not made attacks on it that I am aware of.
|
|
This is our only remaining safe haven in the Bill of Rights.
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|
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|
Amendment VIII
|
|
|
|
Excessive bail shall not be required, nor
|
|
excessive fines imposed, nor cruel and unusual
|
|
punishments inflicted.
|
|
|
|
EXCESSIVE BAIL AND FINES: Tallahatchie County in
|
|
Mississippi charges ten dollars a day to each person who
|
|
spends time in the jail, regardless of the length of stay
|
|
or the outcome of their trial. This means innocent people
|
|
are forced to pay. Marvin Willis was stuck in jail for 90
|
|
days trying to raise $2,500 bail on an assault charge. But
|
|
after he made that bail, he was kept imprisoned because he
|
|
could not pay the $900 rent Tallahatchie demanded. Nine
|
|
former inmates are suing the county for this practice.
|
|
|
|
CRUEL AND UNUSUAL PUNISHMENTS: House Resolution 4079
|
|
sticks its nose in here too: "... a Federal court shall
|
|
not hold prison or jail crowding unconstitutional under the
|
|
eighth amendment except to the extent that an individual
|
|
plaintiff inmate proves that the crowding causes the
|
|
infliction of cruel and unusual punishment of that
|
|
inmate."
|
|
|
|
CRUEL AND UNUSUAL PUNISHMENTS: A life sentence for selling
|
|
a quarter of a gram of cocaine for $20 -- that is what
|
|
Ricky Isom was sentenced to in February in Cobb County,
|
|
Georgia. It was Isom's second conviction in two years, and
|
|
state law imposes a mandatory sentence. Even the judge
|
|
pronouncing the sentence thinks it is cruel; Judge Tom
|
|
Cauthorn expressed grave reservations before sentencing
|
|
Isom and Douglas Rucks (convicted of selling 3.5 grams of
|
|
cocaine in a separate but similar case). Judge Cauthorn
|
|
called the sentences "Draconian."
|
|
|
|
|
|
Amendment IX
|
|
|
|
The enumeration in the Constitution, of certain
|
|
rights, shall not be construed to deny or
|
|
disparage others retained by the people.
|
|
|
|
OTHER RIGHTS RETAINED BY THE PEOPLE: This amendment is so
|
|
weak today that I will ask not what infringements there are
|
|
on it but rather what exercise of it exists at all? What
|
|
law can you appeal to a court to find you not guilty of
|
|
violating because the law denies a right retained by you?
|
|
|
|
|
|
Amendment X
|
|
|
|
The powers not delegated to the United States by
|
|
the Constitution, nor prohibited by it to the
|
|
States, are reserved to the States respectively,
|
|
or to the people.
|
|
|
|
POWERS RESERVED TO THE STATES OR THE PEOPLE: This
|
|
amendment is also weak, although it is not so nonexistent
|
|
as the ninth amendment. But few states set their own speed
|
|
limits or drinking age limits. Today, we mostly think of
|
|
this country as the -- singular -- United States, rather
|
|
than a collection of states. This concentration of power
|
|
detaches laws from the desires of people -- and even of
|
|
states. House Resolution 4079 crops up again here -- it
|
|
uses financial incentives to get states to set specific
|
|
penalties for certain crimes. Making their own laws
|
|
certainly must be considered a right of the states, and
|
|
this right is being infringed upon.
|
|
|
|
|
|
Out of ten amendments, nine are under attack, most of them
|
|
under multiple attacks of different natures, and some of
|
|
them under a barrage. If this much of the Bill of Rights
|
|
is threatened, how can you be sure your rights are safe? A
|
|
right has to be there when you need it. Like insurance,
|
|
you cannot afford to wait until you need it and then set
|
|
about procuring it or ensuring it is available. Assurance
|
|
must be made in advance.
|
|
|
|
The bottom line here is that your rights are not safe. You
|
|
do not know when one of your rights will be violated. A
|
|
number of rights protect accused persons, and you may think
|
|
it is not important to protect the rights of criminals.
|
|
But if a right is not there for people accused of crimes,
|
|
it will not be there when you need it. With the Bill of
|
|
Rights in the sad condition described above, nobody can be
|
|
confident they will be able to exercise the rights to which
|
|
they are justly entitled. To preserve our rights for
|
|
ourselves in the future, we must defend them for everybody
|
|
today.
|