Clearly Established - Filming to Establish Truth of Events

"4.3(C) - Federal Court Decisions: DHS is often involved in litigation that affects its operations. Although not as common, judicial decisions not directly involving CBP can also affect operations. You need to understand these decisions and the authority of the Federal courts in order to know if they affect your duties."

- Customs & Border Protection, Inspector's Field Manual (2008)  

The video above is a very good look at the power of recording technology to protect oneself against public servants who are unconcerned with truth.  It also touches on the law concerning suspicionless Border Patrol checkpoints, like the one outside Laughlin AFB, and presents clearly established law which has been distilled into Border Patrol manual procedure, on what is appropriate during these seizures.

It should be noted that the oral argument before the Fifth Circuit Court of Appeals was edited in the making of this video, and therefore it is not a contextually accurate account.  Liberties were taken to highlight a particular viewpoint.  For the actual audio transcript of the oral argument, please see my previous blog post.

If you find yourself thinking this video is too long, consider that it's still shorter than the suspicionless checkpoint encounter I faced.  Imagine if every time you try to drive to work, this could happen to you, and your cooperation wouldn't be enough to make it stop.

"We have already noted that the permissible duration of the stop is limited to the time reasonably necessary to complete a brief investigation of the matter within the scope of the stop.  The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint."

- Machuca-Barerra, Fifth Circuit Court of Appeals, 2001

"In United States v. Machuca-Barerra, we addressed those limitations in detail and noted that 'The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint...'  It bears repeating that the permissible duration of an immigration stop is the time reasonably necessary to determine the citizenship status of the persons stopped."

- Portillo-Aquirre, Fifth Circuit Court of Appeals, 2002

My Oral Argument Before the Fifth Circuit Court of Appeals

"We have already noted that the permissible duration of the stop is limited to the time reasonably necessary to complete a brief investigation of the matter within the scope of the stop.  The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint."

- Machuca-Barerra, Fifth Circuit Court of Appeals, 2001

"In United States v. Machuca-Barerra, we addressed those limitations in detail and noted that 'The scope of an immigration stop is limited to...determining the citizenship status of persons passing through the checkpoint...'  It bears repeating that the permissible duration of an immigration stop is the time reasonably necessary to determine the citizenship status of the persons stopped."

- Portillo-Aquirre, Fifth Circuit Court of Appeals, 2002

It was an outstanding argument this morning, and the judges demonstrated a mastery of the facts and grappled with an interesting legal question.  The oral argument above is well worth the watch.   The first twenty minutes is my lawyer before the three judge panel, followed by the lawyer from the Department of Justice arguing the government's side, with pointed questions and commentary from the judges throughout to both lawyers.

In Portillo-Aguirre, the ruling states that, "...the entire stop lasted about ten minutes."  The ruling further goes on to explain, "We have found that police violated the Fourth Amendment by extending a stop even three minutes beyond its permissible duration."  The Fifth Circuit found in that case, "Here, the stop unquestionably exceeded this permissible duration."

That ruling first traces the court precedence from the SCOTUS to Machucha-Barrera and then explains yet again, common sense principles that everybody should know, stating, "Here, the stop unquestionably exceeded this permissible duration."

My detention was thirty-four minutes long.  If the judges of the Fifth Circuit found in Portillo-Aguirre that the ten minute detention there was "unquestionably" impermissible in length, and it was, then there can be no question that mine was "super-duper-cherry-on-top" impermissible.  No question in this galaxy or any dimension.

In other words, clearly established.  Beyond doubt.  Fair warning.  Unquestionable.

Hopefully the judges here will find not only that our law "bears repeating yet again - no, really, we mean it this time," as they have done repeatedly in their circuit opinion for over a decade, but also that our law requires some teeth.  Enough is enough.  It's time to hold government accountable when it violates clearly established law.  Qualified immunity should not be allowed to shield government agents from their law breaking this time.

There is no way the agents did not know what they were doing was illegal.  They had more than fair warning.

For the full video of the unconstitutional thirty-four minute checkpoint encounter and to read all courts documents, including the amicus brief from the Texas Civil Rights Project, please click here. 

ETA: For those wishing to read the 28J letter requested by the court, and my response to it, please click here.

Doing What the Rest Won't Do

Just saw this rare positive message from a peer, about my fight at the Fifth Circuit Court of Appeals as discussed on Fox News, over at the Digital Clown Show.

A pilot posted:

I say good for him, and I like to watch/DVR Stossel ('The Independents' on FBN is even better, and entertaining). I'm assuming it's cool with big blue, that or he just doesn't care anymore?

I didn't agree with everything he has said (on here and other places) but I give the guy a lot of credit for standing up and taking the heat that comes with it. Most of us (whether in the military or not, and myself included) rarely take a stand on issues we feel strongly about, but he has done it, whether you agree with him on the issue/how he took it on, or not. It's easy to demonize the people that put themselves out there, and again, that's because they're doing what the rest of us won't do.

The most important point in this post, is the acknowledgment that officers who take an oath to defend the constitution against domestic enemies, are not willing to make good on their oaths.

That is something that we need to fix.

Defending our Constitution, Before the Fifth Circuit Court of Appeals

I, _____,...do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same... So help me God.

As a military officer, I took the oath above, an oath required by Article Six of our Constitution for both military officers and judges.  I took the oath without mental reservation or purpose of evasion.  Still, I can't honestly say that I fully appreciated how solemn that oath was the day I first uttered it.  Like so many who took the same path I did, I was mostly focused on learning the tools of lethality and wielding them to kill our enemies around the world when called to do so.

And I mostly certainly did so.  I relish the opportunity I was given to slaughter our enemies overseas and protect braver Americans on the ground.

But the oath is a great deal more than simply participation in combat.  A strong military or police power is worse-than-worthless, if not leveraged to actually support and defend our Constitution and our liberty, and it's far worse than even that, when used to betray that document.  We can be the strongest and most lethal nation on the planet, and we should be, but if that power is not used to protect the rights of our citizens, then powerful nation or not, that nation is simply not America.

Fortunately, next week I will have the opportunity to again truly support and defend our Constitution against domestic enemies, those who violate it without concern, without hesitation, and without accountability and who do so while thumbing their noses at our judiciary that has ruled to protect our supreme law of the land. 

I will argue against those who refuse to obey OUR law, before the Fifth Circuit Court of Appeals.

The monstrous growth of unchecked and unconstitutional practice that has emerged from a court-shackled and limited exception to our Fourth Amendment (an exception that was mandated by our judiciary to require a minimal intrusion in exchange for straying from the rule that suspicionless seizures are a constitutional violation) has become anything but a limited, brief, and minimal intrusion for many Americans each and every day.

I will argue before the Fifth Circuit Court of Appeals this Tuesday, that our Constitution must be adhered to, that government agents must restrain themselves in accordance with our judiciary's case law, and that federal government that refuses to do so must be held accountable.  As Senator Mike Lee discussed in a topic (very near to my heart) with Senators Rand Paul and Ted Cruz, there must be teeth to our laws.  There must be a standard. 

A system where judicial case law can be ignored, has no teeth.  I will argue the law, and I have a strong case.  The real question, however, is whether the law will matter in the end, whether the law has teeth, when applied to the federal government.

When people are not accountable to law, there is anarchy.  When government is not accountable to law, there is tyranny.

It won't be the first time I've been in the ring in defense of our Constitution in a very real way, against the same tyrannical forces, risking my financial well being to make good on my oath.  To this nation I have not only pledged, but actually risked, my life, fortune and sacred honor.

While I won my previous engagement, sadly our Constitution still lost in a very real, and historically significant, shameful manner.

This engagement is also important, because the same principle is at stake - the principle that Americans have rights, that our government we created must respect those rights, and that our law applies just as equally to our servant government as it does to us.  We are citizens who own this government, we are not subjects to be ruled by government.  We rule government through our law that it must follow.  When it does not, just as we would be, it must be held accountable.

Our law must have teeth.

I hope in this engagement I can count on other government servants to do the right thing, to make good on their oaths, as an anonymous public servant did in my previous battle.  These days we have no overage of success stories in America, and we need those who truly care about our supreme law and our nation, to do right by God and taxpayer as they swore they would do.  Without mental reservation or purpose of evasion.

To support and defend the Constitution against all enemies, foreign and domestic.  For me, in a very real way, I echo my brother Ben Franklin's words in the video above:

May this American experiment continue, with God's blessing.

America is important and must be defended.  The time is long overdue for Americans to remember their heritage, and to fulfill their responsibilities as American citizens.  As Franklin tells us, deeds are the measure, not words.  The same idea of "Deeds Not Words" forms the motto of a Special Operations squadron I flew with.   Beliefs, professions, opinions, desires, hope-tos, and oaths... those are all well and good.  But deeds define us.  Deeds matter.  In combat, and at home.  Foreign and domestic.  A symmetry upon which our public service foundation relies.

I hope more of us who raised our right hands, will be up to the solemn task.  For America.

So mote it be.

60th Anniversary of a War Horse - the C-130 Hercules

Happy birthday Herk.  You are widely known as one of the most successful airframes to enter the inventory.  Your variations make your success obvious.  C-130, WC-130, EC-130, HC-130, MC-130, LC-130, and of course the most lethal version of all, the AC-130.

As the video shows, you also made a great military aerial demonstration team.

I'm personally very fond of this aircraft.  In pilot training I opted for the Herk track rather than the fighter track. Why?  I didn't like the culture I saw from the fighter community at that time, despite wanting to fly something fun.  So I went with the Herk because it had a crew mentality, it traveled, it was important, and it was not some boring airliner.  To me, the C-130 was something like a monster truck of the sky.

Pre-911 flying the Herk was pure bliss.  The travel, the keys to the jet for a weekend or longer, so much fun was to be had.  Whether it was dropping the Airborne students at Fort Benning (of which I am alumni), or doing multiple re-configures for multiple drops at Pope, or a low level near Reno, Nevada it was a great time.  Assault landings into dirt strips were always exciting, low level tactical formation was a blast, and any time passing through St. Johns, Newfoundland was a pleasure.

I can neither confirm nor deny that I had a kite on the east coast pass under my wing while the ramp was open and dudes were waving to crowds on beaches in harnesses.

Then there was 9/11.

I was doing aircraft commander upgrade in the C-130H at Little Rock AFB when it happened.  I left billeting and noticed smoking buildings on the news as I went to go fly a simulator.  After I got to the sim building I was informed what had happened.

We flew the simulator mission anyway.  Herk drivers hack the mish.  We debriefed in front of a television and tried to understand what had happened.  We knew life was going to change.

Two days later I put the Gunship number one on my dream sheet.  Within weeks I had orders.  I spent five years in the most lethal machine to ever fly, and got to personally kill a great many of those who would harm America.  I have never had a more difficult job in my career, nor one nearly as satisfying.

The Herk is about getting it done.  Whether it's JATO rockets, landing on aircraft carriers, low level airdrop, flying in hurricanes, landing on ice in Antarctica, or slaughtering the enemy and keeping Americans safe on the ground...the Herk is dependable.

Great aircraft and great aircrew.  Happy birthday, Son of Zeus.

Treason by the American Empire

A new memo was released detailing the justification of assassinating an American citizen without charge or trial, despite that American not presenting an imminent threat (being on an assassination list for nearly two years is not evidence of an imminent threat).

According to this article:

Although Awlaki was an American citizen, the memo states that applying constitutional rights to a trial in this circumstance 'could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interests.'

It should be noted the rationalization above was provided by David J. Barron, who has since taken a seat on the bench as a federal judge.  That does not bode well for our liberty, when our constitutional rights are seen as an impediment to "our" national interests (ie, the interests of the powerful and connected who are most certainly not representative of us).

Our Constitution defines treason as making war on the United States.  When American government uses the machinery of war (ie drones and air-to-ground missiles and bombs) to kill American citizens without charge or trial, it is making war on America.  Not unlike the military occupation of Ferguson, Missouri we see on the news each night.  Not unlike the NSA spying on each of us, recording our private communications, as though we were Al Qaida in Afghanistan.

Of all that law breaking, using the machines of war to kill Americans is quite simply, treason.  The real treason, not the bullshit spouted off by politicians to demonize anybody they disagree with, like Edward Snowden.  No, this is the real treason we were warned about.

We have rights that include the right to not have our government take our life without the due process of law (Fifth Amendment) and a right to be found guilty of a crime (treason is a crime) by a jury of our peers (Sixth Amendment) and the charge of treason requires an open trial (Article Three).

But a government that has no use for our Constitution, and cannot be bothered with it when powerful monied interests control it, is unconcerned with our Bill of Rights and the body of our supreme law of the land.  In such an Alice in Wonderland state of affairs, it is no wonder that innocent Americans get put into the largest prison system in the world for smoking a plant, while those in government who murder innocent Americans receive no accountability at all.

In this Inverted America, it is not our Constitution that needs to go.  It is our government that has broken not just the faith with America, but the law that needs to go.  If only it were as easy as voting, but only a fool would think the powers that be haven't corrupted and controlled that system.  Just ask our Supreme Court of the United States that not long ago had to decide an election for, you know, the gold standard of "democracy."

Those of us in the profession of lethality need to remember that such a government is only able to commit treason because of inferior military officers who swore an oath, who do not have the character to do right by the American neighbors who pay them.  Worse than worthless military officers who lie to their families about how heroic they are, who don't have the courage to do the right thing after swearing to do so, and being paid to do so.

In this Inverted America, such officers often think they are the bees knees, because they can write a good OPR and kiss ass with gusto, while complaining over on BaseOps.Net about how leadership is ruining the Air Force.

Those of us in the profession of arms better man-up in the worst way.  Otherwise, we might as well start adding the writings of 1940s German soldiers into our PME while watching our families burn because, when tested, we were too cowardly to take a stand.

We are in a very bad place.

The New Rush for Bloody, Costly, Unproductive Intervention

A journalist lost his life due to beheading by ISIS.  A journalist who was captured by the Syrian Rebels that our government has supported and at least one of our senators has had lunch with.

This makes me angry and I know it makes others angry.  But I invite others to take a breath and not rush to insanity as we have done for the past decade with tragic results to America's security.

There is a push for further intervention by those who own our government.  Those who think we Americans own it, I am sad to inform you that has not been the case for some time.  It's the nature of money and power.  General Clark alluded to it in the video above.

And media is key to ensuring you don't understand how you have lost your country, while keeping your selective service number.

Don't buy the media nonsense to take our men and women and children and feed them as fodder into our war machine simply to bolster their political and business agendas.

Enough is enough.

Recent Article with American Hero - Ed Snowden

Wired magazine just published a very slick new article after an interview with Edward Snowden.  Always worth reading the words of a courageous American public servant who bravely took one on the chin for his American neighbors, to expose the massively illegal conduct of the federal government.

Snowden is a superb role model of what a faithful American public servant looks like.  Therefore, he will be despised by most in public office today, to include those in the military.

That shouldn't be suprising for those who pay attention and are honest.  If the insane weren't running the asylum and setting up insane rules and doing insane things, there would never have been an Edward Snowden.

Wendy Reaves Bemenderfer - Little Tyrant of Purdy, WA

I had an interesting conversation last night.  Wendy Reaves Bemenderfer made a somewhat animated comment about getting in a man's face in public, breathing fire, because she didn't approve of that man's diction.  Then decided to brag about it on Facebook.  She informed us that she has never been more angry.

Perhaps she is more angry now?

 
I share this conversation not only because I think it's an interesting look into the heart of a value system that can explain so much in our larger society, but also because a simple conversation that should have been long forgotten by now, has become a contest of free speech.  On one side is a woman, Wendy Reaves Bemenderfer, who will get three inches into your face in the public sphere if you use a word she doesn't permit you to use, and will attempt to have you and your speech removed from the public sphere if you do not conform.

When I made the comments above, the self described fire breather defriended me.  That is a fine response.  Nobody has a duty to provide a platform for others to disagree with them or to criticize them.  People may construct whatever bubble they wish to live in.  But I felt it was an interesting conversation on parenting and the public sphere, so I brought up the topic on my own private Facebook page.  Not wanting Wendy Reaves to feel like she couldn't join in the conversation or defend herself, I made the thread public and sent her the link in case she wanted to join in.  She made it clear she was not interested in joining in, so I made the thread private once again.

A long conversation started after I invited several mothers to offer their thoughts.  Some supported Wendy, while others did not.  It was a worthwhile thread about parenting and civic duty in the public sphere.  It was a valuable discussion with differing viewpoints.  Or as one of my peers described the conversation:

The post generated nearly 100 thought- provoking comments from many different people, some on her side, some on his. It made everyone involved think about the issue at hand and discuss it in detail.

This morning, however, I was informed that:

This was the one and only mention of Wendy Reaves Bemenderferfor ever made on my Facebook page.  While I was critical of her physical intimidation of others in public for their speech, I did not use any hate speech, and did not harass or "cyber bully" her.  I didn't even use any, oh my, profanity.  I simply disagreed with her.

But it's never really about a particular magically bad word.  It's about wanting to control your neighbors.

For some, differing viewpoints cannot be allowed.  It's okay for them to get "three inches from [your] face telling [you] what [they think]."  But it's not okay for you to tell them what you think, even when far from their physical space.  We are all equal, just some are more equal than others.

So an anonymous individual made unspecified allegations about me to Facebook.  I was never told who the individual was that made the claim, or the nature of the allegations other than the charge that I had violated "community standards."

Yet another company sides with an individual who wishes to control others in the public sphere, and to censor speech they personally do not like.  We see the dangerous fruits of these un-American values throughout our society today, and I believe conversation and debate is vital to change that.

At any rate, for these efforts, the anonymous individual has earned a blog post.  Perhaps they will try to have this post censored, too.  Either way, the contest of free speech will continue!

A ROZ Over American Protesters?

A cop killed an unarmed American teenager the other day.  The town went crazy in protest, and began rioting and looting.  As Dr. Martin Luther King said, "A riot is the language of the unheard."

The armed militarized government police began responding.

Part of that response includes a No Fly Zone over where protestors are letting their voices be heard.  There are multiple accounts of abuse and police confiscating cameras.

Just another part of "America" today that reminds me of service in Iraq and Afghanistan.