Congressional Republicans have been vocal in demanding the United States impose travel bans from African nations where Ebola infection rates are high. Travel bans have a long history of being of dubious value, and a look at travel bans imposed on HIV victims is informative.

ebola

The United States government has previously imposed travel bans to control HIV infection rates. Travel bans were imposed and required waivers for the following categories: Spouses of US citizens with HIV, unmarried sons or daughters of US citizens with HIV, minor unmarried adopted children of US citizens with HIV, parents, persons eligible to self-petition under the Violence Against Women act, and refugees seeking humanitarian exceptions. The ban was reportedly ignored to a significant extent, but many persons (without any of the waivers) were removed, deported or denied entry by U.S. Immigration authorities. In 2010, the ban was lifted, but Homeland Security in the U.S. is considering it as a framework if political pressure persist in restricting entry from infected African nations.

Any legal ban would have to provide for greater travel freedom for US citizens. The United States Constitution, the “Privileges and Immunities Clause” recognizes freedom of travel as a constitution right. These rights, however, do not apply to citizens of foreign nations. It is unclear, but generally understood, that non-US citizens with legal status in the United States are afforded such travel rights. Historically there are some exceptions: look to the “Mann Act” for restrictions on travel between states of unmarried male/female companions. Cases such as Ward v. Maryland (79 US 418) are the basis for the constitutionality of such restrictions on travel. Balancing those rights is the “health and Welfare” clause of the constitution.

The current state of the law permits the Director of the United States Center for Disease Control to impose travel bans between states (nations) to control and contain “viral hemorrhagic fevers” Ebola is such a disease. The last legal challenge to quarantine laws came in 1902 when the US Supreme Court upheld the power of individual states to impose quarantines even if the quarantine effected interstate commerce. If the US government fails to act then individual States, exercising their police powers, can effectively control or ban the travel of individuals who do not comply with State reporting laws requiring proof of disease-free status. Regardless of the arguments that travel restrictions do not work, the increasing public pressure for action is expected to put State’s rights activists in the front of moves for states, such as Texas and Florida, to impose State restrictions in the absence of federal action.

The Office of the United States Attorney for the Southern District of Florida opened a Grand Jury indictment on October 10, 2014 and made a new arrest in the Rothstein scam. A now “former” regional vice president of TD Bank, Mr. Frank Spinosa, age 53, was charged in Federal Court with wire fraud and conspiracy. Released on $250,000 bond with an electronic monitor, his attorney Samuel Rabin, negotiated terms of release for his client at the initial appearance hearing held before the US Federal Magistrate in Fort Lauderdale.

rothsteinArraignment has been set for October 24, 2014. The investigation was known to Mr. Spinosa for several years, his attorney stated. The Grand Jury Indictment was unsealed on Friday morning, October 10, 2014, and comes within days of the deadline set by law for arrests in this ongoing case. The indictment of Mr. Spinosa contains charges that can result in a maximum penalty of well over twenty years in federal prison and fines of over $250,000.00. Because each of the five counts can resolve with a twenty year sentence, Mr. Spinosa is facing a possible one hundred years in prison. Scott Rothstein was sentenced to fifty years and is currently serving his sentence at an unknown federal detention facility.

The charges against Mr. Spinosa allege that Spinosa committed fraud by giving a “false sense of security” to potential and actual investors. The indictment goes on to state that as a result of the alleged inducements, hundreds of millions of dollars were invested in Rothstein’s investment scam. Spinosa was fired by TD Bank in October 2009 when the Rothstein scam first came to the attention of the public.

The indictment alleges that Spinosa signed letters known in the financial sector as “lock letters.” Lock letters from banks are the bank’s assurance that money is being “locked” and held separate and apart from other funds for the limited and specific purpose of remission to the beneficiary of the “lock letter.” This assurance, fraudulently relied upon by investors, created the false belief that their invested funds were held separate and apart from other funds and was in effect guaranteed by the bank as segregated and safe. This “guarantee” assures investors that their money is never mixed with other monies and is safe from claims and transfers to others.   Based on these “lock letters” investors sent funds to Rothstein, money which was neither “locked” nor segregated. These funds were allegedly diverted for Rothstein’s personal use and spent on such things as jewelry, watches, expensive cars, boats, houses, and lifestyle excesses of historic proportion.

Rothstein has testified in deposition that Mr. Spinosa lied when he wrote “lock letters.” Rothstein testified further that Spinosa “looked the other way” when it came to suspicious and wrongful banking transfers. Further, that Spinosa acted with full awareness and knowledge both of the wrongfulness of his acts and their criminality. Rothstein testified in depositions, and prosecutors alleged, that Spinosa had “talking points” or scripts that he read to investors which were prepared by Rothstein and that Spinosa participated in conference calls in which investors were defrauded.

BuzzFeed, a social media “gadfly” page, reports that the DEA created a fake Facebook account, filled the page with statements that evoked a response, and made criminal cases. Using personal photographs and information (drawn from the personal information of a woman arrested on Cocaine charges) the DEA tricked her “associates” to reveal incriminating information. Here is what the DEA did…. using the name “Sondra Arquiett” the DEA created a Facebook account.

Source: Facebook

Source: Facebook

The DEA extracted personal photographs and personal information from the cellphone belonging to a New York resident who was arrested in a cocaine case. Using this false Facebook page, some people who knew Sondra Arquiett engaged in Facebook conversations revealing incriminating evidence and making incriminating statements. Photos of her BMW automobile and a narrative of how she was lonesome for her boyfriend were posted. DEA, in a creative binge posted photographs of her on the hood of her car and photos (taken from her cellphone) of her young son and her niece. Now there is a federal lawsuit in U.S. District Court in Albany, New York.

Defending itself, the DEA argued that Arquiett had “implicitly consented” to the DEA using her cellphone contents. It is unknown as to what Arquiett actually said or stipulated as to the use of the contents of her cellphone. Arquiett in her lawsuit against the DEA stated that she was now suffering emotional distress and fear because she was “outed” on Facebook as a cooperating witness and an informant. Aquiett stated that dangerous and violent people who went to the DEA Facebook page were going to kill her because she was an undercover cooperating witness who could testify against them. Her pleadings spoke of “dangerous individuals” who were being investigated and that those “dangerous individuals’ were going to kill her because of the fake Facebook page created by a DEA agent.

Facebook has a policy, known to the DEA and known to the DEA agent that states, “You will not provide any false personal information on Facebook or create an account for anyone other than yourself without permission” [taken from Facebook’s policy and uses agreement that all Facebook users must agree to before creating a Facebook account and constructing a Facebook page]. No comment has been forthcoming from Facebook, but they are summoned to testify at the trial. Arquiett was originally arrested in New York in July of 2010. Her case was resolved in 2012 in Federal Court. Reports of the case can be found in statements by Justice Department spokespersons, NBC and “BuzzFeed.”

The Securities Exchange Commission Office of Investor Education has issued a recent bulletin concerning financial advisors. The SEC and FINRA have been under a great deal of pressure. Both Congress and consumer groups are looking for evildoers. So, the politically easy reaction is to attack financial advisors.

Financial advisors are regulated and their records are kept into primary locations. One is the industry‘s secure reporting system and the other one is open to the public. The one open to the public is Broker Check. It is easily available online to the public. The Broker Check report includes a list of the broker’s registrations, his/her licenses, previous employment, customer disputes, and any disciplinary actions.  Any accusations of professional misconduct are readily available online.

The investment advisor public disclosure website has more background information. Information can also be obtained from state regulatory agencies. Most states have their own agency regulating financial advisors and investment vehicles. There are other web sites and online locations to look. Yahoo Finance has information both on current market activities and financial advisors. Forbes magazine, likewise, at Forbes.com. Some security lawyer websites and blogs also have lists of misdeeds. My own website security law website lists alphabetically and defines the myriad of misdeeds wrongful actions and crooked activities of bad stockbrokers.

The SEC maintains regional offices which you can locate online at the SEC website. Offices in Miami and Atlanta have over 150 full-time SEC lawyers who are charging criminally for violations of the securities act.

If you believe you have been the victim of a financial fraud, you can contact the SEC. The SEC is a government agency created by statute. It has both enforcement and regulatory responsibilities.  FINRA is not a government agency. It is a quasi-public quasi-governmental agency. It functions as a dispute resolution form. If you contact FINRA, which maintains a readily accessible website, you can find out how to begin an arbitration proceeding against a financial advisor. There was an expedited process for claims under $25,000, which can easily be done without an attorney. You will be assigned one arbitrator who will hear your complaint and make a finding. For man is in excess of $25,000 a three-panel arbitration board is convened for the arbitration.

As recently as August 6, 2014, the New York Times reported that Justice Ruth Bade Ginsberg has commented on the Supreme Court’s recent decisions, saying that while gay and lesbian rights move ahead, women’s rights have moved off the Court’s radar.  Her comments were that she sees “inconsistency.”

Ginsburg

Source: huffingtonpost.com

Now, no one is suggesting anything sexy about the Court, but their sexitics (sex + politics) is being analyzed, reviewed and digested and has been in the news.  As recently as June 2014, the Supreme Court has ruled that same-sex couples have the right to equal treatment in some clearly defined legal matters.  And, during the same term, the Court has created law that corporations are persons and have religious views and rights.

The fiction of corporations as persons (just as humans are persons) has been used by the Court to give corporations the right to participate in elections and, now, to challenge women’s rights.  The Court is playing this as if it were a trump card. It is assigning human rights to corporate personhood and equating those rights and powers with human personhood.   Now the Court has gone on to use this new concept of “corporate personhood” to restrict women’s rights, and Justice Ginsberg’s reaction is in the news. This modest comment is a powerful statement that the sexitics of the Court is out of balance.  Court followers agree that her stance on “sexitics” on the Court may push her to remain on the Court beyond her hoped-for retirement, and champion women’s rights.  Justice Ginsberg’s comments were made before a law school audience.  Her reported comments are that the Court writes of “equal dignity” and fundamental values in gay rights cases, but the Court is retreating on women’s’ rights issues.

From our perspective, in the courtrooms, it is foreseeable, and I’m forecasting here, that the Supreme Court may soon declare that marriage is a union between persons, and that the sex of the persons does not bear in the legal considerations and rights of marriage.  The clear trend of this Court is to push back on women’s rights.  If you review the recent decisions on medical leave, equal pay for equal work, and abortion and contraception rights in the Court’s recent decisions involving “Obama Care,” the trend appears like a rollback.  Re-read the “Hobby Lobby” case and see how the Court has created a right for corporations to have religious views on non-religious issues and trump a woman’s access to contraception.  Define religious issues as having to do with faith and spiritual matters and a woman’s right to control her body’s reproductive capacity and you can find a defining line between one’s beliefs in spiritual matters and social issues such as reproductive rights and personal choice on access to contraceptives.

Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.

300px-FBISealThe fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.

As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.

For you to see the skeletal documents that outline the purpose directed policy, one can refer to a 2011 document, which contains a set of rules that the F.B.I. disclosed previously. Other places to look for a quick read are an affidavit from Attorney General Eric Holder and the ruling from a Federal Court judge in Oregon. Attorney General Holder has maintained that the Watchlisting Guidance should remain out of public scrutiny, and the courts are most likely not to force the document into the public domain.

What is, however, of both practical and legal significance is that the government is yielding to transparency over secrecy, and still striving to maintain a high level of security for domestic and international air travel. For individuals, it means that a process and procedure may soon be in place for those who are banned from plane travel to have their status reviewed in a rational and considered forum. Either the government will accede to this or face continued legal battles for a process to review.

Korean Air Lines Shoot Down

Source: www.newsweek.com

Unfortunately, the firing of a missile at Malaysian Airlines Flight 17 is not the first, but one many of such incidents. Here is a list:

  • Libyan Arab Airlines Flight 114, a Boeing 727, was shot down on February 21, 1973 when it strayed over Israeli territory, refused to land, and was shot down.
  • Korean Air Lines Flight 902, was shot down on April 20, 1978 by Soviet Su-15 fighters after entering Soviet airspace and it failed to respond to demands to land.
  • Air Rhodesia Flight RH825, was shot down on September 3, 1978 by Zimbabwe People’s Revolutionary Army by using a Strela-2 missile.  After it crashed, the fifty-six survivors were killed by the Revolutionary Army troops.
  • Air Rhodesia Flight RH827, was shot down on February 12, 1979 by the AIPRA guerrilla army, again using a Strela 2 missile, the same as the previous shoot-down of September 3, 1978.
  • Aerolinee Itavia Flight 870, was shot down by NATO jet fighters on June 27, 1980.  This downing is disputed and there is some report that there was a bomb on board, however Italian Prime Minister Francesco Cossiga attributed the downing to French interceptors used in the Gadio “clandestine” operation.
  • Korean Air Lines Flight 007, was shot down on September 1, 1983 by Soviet Su-15TM fighters west of the Soviet “secret” airbase at Sakhalin Island.  Congressman Larry McDonald was on that flight and died.
  • Polar 3, a research airplane, was shot down on February 24, 1985 by the Polisario Front, a guerrilla army operating in West Africa.
  • Air Malawi 7Q-YMB, shot down on November 6, 1987 over Mozambique: a civil war was in progress there and the shoot-down is attributed to participants in the civil war.
  • Iran Air Flight 655, was shot down on July 3, 1988 by U.S. guided missiles fired from the guided missile cruiser USS Vincennes. The U.S. later apologized and attributed it to a “mistake:” the US. said it thought the commercial airliner (an Airbus A300) was an Iranian F-14 giving false signals that it was a commercial flight.
  • T&G Aviation DC-7, was shot down on December 8, 1988 over the western Sahara desert by the Polisario Front.  The aircraft was a DC-7 used to spray insecticide as a public health goodwill gesture to control a locust outbreak.
  • Transair Georgian Airliner shot down in September 1993 by missiles and gunfire from the former Soviet republic Georgia.
  • In September 1993, three airliners belonging to Transair Georgia were shot down by missiles and gunfire in Sukhumi, Abkhazia, Georgia.
  • Lionair Flight LN 602 was shot down in September 29, 1998 off the coast of Sri Lanka.  Although unproven, it is widely believed to have been shot down by the Liberation Tiers of the Tamil Eelam rebel group operating in Sri Lanka.
  • Siberia Airlines Flight 1812, shot down October 4, 2001 by Ukrainian missiles fired from the Crimea peninsula.  The missile was mistakenly fired during a military exercise.  The President of Ukraine, Leonid Kuchma expressed condolences but never confirmed responsibility.
  • DHL freight aircraft, November 22, 2001, damaged by a mid-air missile strike managed to land with wing damage inflicted by a missile.   It had just taken off from Bagdad, Iraq.
  • Mogadishu TransAVIAexport Airlines Il-76, shot down March 23, 2007 over Somalia.  The missile was reportedly fired by a Somalian private army during the battle for Mogadishu, a conflict by private warlords for Somalia.

The news of July 9, 2014 from Iraq is that 90 pounds of uranium compounds have come into possession of the Islamic State In Iraq and Levant (ISIS).  The uranium was obtained from a university laboratory in Mosul, a city in Northern Iraq that is occupied by ISIS and is beyond the control of the Nation of Iraq.  A spokesperson for the International Atomic Energy Agency has officially notified the United Nations in New York of these developments.

The International Atomic Energy Agency Convention on the Physical Protection of Nuclear Material obligates the signing nations to protect nuclear facilities and material in peaceful domestic use, storage and transport.  The treaty, entered into in 1987 and modified in 2005 has 150 nations as “signatories”.  The treaty covers the “low grade” nuclear material stolen by the ISIS.  The International Atomic Energy Agency, in its press release, indicated that the nuclear material is not suited for atomic explosive weapons, but may be used in “dirty” bombs.  A dirty bomb is a conventional explosive device embedded in radioactive material.  The conventional explosives would spread the nuclear material and contaminate the explosive radius with levels of radioactivity that exceed acceptable levels of exposure for humans.

There is no judicial venue for enforcing agreements signed by nations.  The Charter of the United Nations has a process for member nations to bring treaty violations before the Security Council, but no enforcement process exists.  The United Nations created the International Court of Justice (ICJ) as a court for nations to litigate disputes in accord with international law.  International Court of JusticeThe ICJ has been a forum of limited jurisdiction and has been a court where some member states go to seek resolution of disputes.  The limitation of the court is it has no enforcement powers.   Because the ICJ cannot enforce any of its rulings it has declined to take cases where the outcome would require enforcement.  By example a civil court in the United States can use contempt powers to arrest and detain and fine persons who fail to comply with Court orders.

The Security Council of the United Nations, under Chapter VII, can impose sanctions on member nations that threaten international peace and security but does not and has not invoked Chapter VII in matters that would require actual enforcement.   At this time a violation of the Convention on the Physical Protection of Nuclear Material by ISIS may be beyond the powers of the ICJ to act and, for political reasons, the Security Council may not invoke Chapter VII.   Individual citizens cannot force nations to comply with their treaty undertakings with some limited exceptions: The United States Supreme Court has, over the past 120 years, permitted some banks and corporations to sue in Federal Court when they are financially harmed by inaction or non-compliance by signatory nations to some treaty obligations.

The FBI announced changes to its interrogation protocol when investigations concern national security.  Newer rules would allow profiling techniques, such as, mapping of certain ethnic groups.  In past years, civil rights concerns were raised about the use of racial profiling.  The FBI changed its interrogation policies as a result of those concerns.  In June of 2014, the FBI began to circulate a change in its new guidelines to permit racial profiling in national security investigations.  In a release that was made to civil rights groups and in a letter sent to Congress, the policy changes were announced.

In 2006 and 2007, internal investigations undertaken by the FBI revealed abuses involving surveillance, credit card information and telephone logs of racially targeted persons or groups. The report suggested that the use of racial profiling was condoned in domestic criminal investigations and was shortly stopped.  In 2007, a set of guidelines was issued and policy changes were made in FBI investigations.  The breadth of the guidelines to limit or reduce racial profiling has impacted, according to the FBI, national security investigations and accordingly, those restrictions will be lifted.

The FBI said that the current rules made it difficult for agents to conduct terrorism probes.

Source: ACLU.org

Source: ACLU.org

The Director of the American Civil Liberties Union’s Washington legislative office, Ms. Caroline Fredrickson, issued a press release opposing the changes in 2007.  Ms. Fredrickson’s comments were that removing restrictions on national security investigations would “…allow for racial profiling without question.”  Ms. Fredrickson’s comments were generally received as accurate, although the FBI statement reiterated that civil rights would not be violated with the change in investigatory techniques and protocols and limited the permissive use of racial profiling to only national security matters.  The FBI said that once an official of the FBI notifies the suspects of the nature of the investigation that the racial profiling limitations would apply from that point forward.  Due to the focus on terrorism, the FBI did not permit either a careful study or review of its proposed changes when it circulated the draft to members of the press and civil rights groups.

The new guidelines would replace FBI guidelines issued in 2007.  An FBI official said the new rules are crucial to helping the bureau become “an intelligence-driven agency that is not waiting for things to fall on our doorstep, but actually looking proactively for threats within the country.”

Racial profiling, which targets persons on their race or ethnicity, has been the focus of the American Civil Liberties Union’s requests to end profiling.  The FBI has said that race and color are not considerations in selecting investigation targets or investigations.  The use of national origin has given rise to FBI investigation techniques that catalog visual and facial clues, which it believes is a tool in investigations in national security, matters.  Law enforcement finds that racial profiling is a useful investigative technique.  By example: sexual battery is most commonly a crime involving a female victim and a male perpetrator.  In an effort to reduce sexual batteries, law enforcement may use sex as a factor.

Other examples of racial profiling that the FBI will use in national security investigations are statistically justifiable findings as to the national origin of terrorist.   By example: Few terrorist suspects are of German birth while a significant number of suspects are of Saudi or Pakistani birth.  It is argued that without profiling based on provable commonalities among suspects that investigations would be hampered, assets misappropriated and some preventable terrorist acts would not be discovered due to the mis-application of limited investigatory resources.

Obama Care (the Affordable Health Care Act) requires health insurance provide birth control benefits. The Hobby Lobby case tells us you don’t have to if you are a closely held corporation (4 or fewer stockholders) and you have bona fide religious objections to birth control.

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

The decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993. What has upset an entire universe of people, from women’s rights and gay and lesbian rights to, and including, civil rights advocates is the Supreme Court’s willingness to allow this obvious subterfuge.

In deciding the case, the Court agreed to look only at the Religious Freedom Restoration Act of 1993’s procedural processes. The Court went to great pains to say this case has nothing to do with abortion rights and civil rights, and that is why the Court is being attacked.  In its written decision, which is being called intellectually dishonest, the U.S. Supreme Court decided that regulations promulgated by the Department of Health and Human Services under the Patient Protection Act violated the “burdensome” test of the Religious Freedom Restoration Act.  The (RFRA) prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.  Because the Court found that four of the contraceptive coverages “burdened” Hobby Lobby’s right to religious expression, the Court struck the four contraceptives from the insurance of employees of Hobby Lobby.

The Court made great efforts to calm the waters by reminding the reader to keep in mind that this case was not a first amendment religious freedom case.  Nor, so the Court wrote, is it a privacy or a women’s rights case, an abortion rights case or a civil rights case.  The Court was clear that it was only deciding on the issue of burdensome regulations as it affects rights of payers of medical insurance to impose their own religious beliefs. Critics of the decision accuse the Court of  trying to change the relationship of government and religion with this decision.  Critics say  the legal “mechanics” is a  slight of hand by the Roberts Court.