Secret Laws

Chandos the Red · Nov 22, 2004

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And that is not to say that the Patriot Act is full of things that are inconvenient to citizens. Far from it; the bulk of it has nothing to do with infringing on privacy or rights.
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All right then, let's begin:

Legislative proposals in response to the terrorist attacks of September 11, 2001 were introduced less than a week after the attacks. President Bush signed the final bill, the USA PATRIOT Act, into law on October 26, 2001. Though the Act made significant amendments to over 15 important statutes, it was introduced with great haste and passed with little debate, and without a House, Senate, or conference report. As a result, it lacks background legislative history that often retrospectively provides necessary statutory interpretation.
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Americans, at least those who value Liberty over ideology and party politics, should already be concerned with the implications of such a lack of oversight on the part of congress.

When the legislative proposals were introduced by the Bush administration in the aftermath of September 11th, Attorney General John Ashcroft gave Congress one week in which to pass the bill -- without changes. Vermont Democrat Patrick Leahy, chairman of the Senate Judiciary Committee, managed to convince the Justice Department to agree to some changes, and members of the House began to make significant improvements. However, the Attorney General warned that further terrorist acts were imminent, and that Congress could be to blame for such attacks if it failed to pass the bill immediately.
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It is the job of congress to consider fully the laws that they pass. Otherwise, why are they there?

Section 215 is one of the most blatant parts of the Un-Patriotic Act regarding the Constitution. The Bill of Rights is the guarantee that protects indiviuals against the awesome power of a centralized government, especially one which is as pervasive as ours.

Section 215 "gives the FBI virtually unlimited access to... bookstore and library records" and has caused tremendous concern among booksellers and bookstore customers, librarians and library patrons, as well as many other groups.

Section 215 of the Patriot Act is an issue that has united book and library community as never before. It has only been recently that efforts by ABFFE (The American Bookseller's Foundation for Free Expression) have revealed how united we are as an industry in being concerned about Section 215, and thus it is only now that we can collectively realize how much power we have to drive change.
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What about the "due process of law?"

Downplaying the extent of these changes, the DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past. The difference they don't acknowledge is that investigators may now do so secretly, and these orders cannot be contested in court.
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Many are fighting back to protect their Constitutional rights.

The Arcata ordinance may be the first, but it may not be the last. Across the country, citizens have been forming Bill of Rights defense committees to fight what they consider the most egregious curbs on liberties contained in the Patriot Act. The 342-page act, passed by Congress one month after the Sept. 11, 2001, terrorist attacks, with little input from a public still in shock, has been most publicly criticized by librarians and bookstore owners for the provisions that force them to secretly hand over information about a patron's reading and Internet habits. But citizens groups are becoming increasingly organized and forceful in rebuking the Patriot Act and the Homeland Security Act for giving the federal government too much power, especially since a draft of the Justice Department's proposed sequel to the Patriot Act (dubbed Patriot II) was publicly leaked in January.
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Section 215 of the USA PATRIOT Act poses a grave threat to both freedom of thought and the right to privacy. The books people borrow from libraries and buy from bookstores tell a lot about who they are, what they think and the ideas they are exploring. Those records deserve the highest legal protection and should never be available to the government just for the asking. Before Section 215, the law had wisely established strict protections requiring the government to not only prove to a judge probable cause but also that the records were directly related to a pending investigation. But under Section 215, all that has been swept away and replaced by a superficial process that forces judges to authorize a search of such records if the government merely says that the records are "sought" as part of an investigation. And what's worse, Section 215 imposes a gag order punishable as a felony if the library or bookstore tells anyone - including the customer! - about the search.
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Section 213 eliminates the prior requirement that law enforcement provide a person subject to a search warrant with contemporaneous notice of the search. The new "secret search" provision applies where the court "finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect." Although the Administration's "Field Guidance on New Authorities Enacted in the 2001 Anti-Terrorism Legislation" states that the new authority "is primarily designed to authorize delayed notice of searches," the amendment permits seizure of any tangible property or communications where the court finds "reasonable necessity" for this seizure. The law requires that notice be given within a "reasonable period," which can be extended by the court for "good cause." "Reasonable period" is undefined, and the Administration's Field Guidance advises that this is a "flexible standard."
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This significant change in the law applies to all government searches for material that "constitutes evidence of a criminal offense in violation of the laws of the United States" and is not limited to investigations of terrorist activity. Prior law authorized delayed notification of a search only under a very small number of circumstances (such as surreptitious electronic surveillance). The expansion of this extraordinary authority to all searches constitutes a radical departure from Fourth Amendment standards and could result in routine surreptitious entries by law enforcement agents.
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Under prior law, law enforcement could use a subpoena to obtain "the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service or a subscriber to or customer of such service and the type of services the subscriber or customer utilized" from an internet service provider. Section 210 expands the type of information that a provider must disclose to law enforcement to include, among other things, records of session times and duration; any temporarily assigned network address; and any means or source of payment. This heightened authority to use subpoenas (rather than court orders) for a broader (and more revealing) class of information is not be limited to investigations of suspected terrorist activity.
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The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant where the private communications of law-abiding American citizens might be intercepted incidentally.
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Here are some links:
http://www.epic.org/privacy/terrorism/usapatriot/
http://www.readerprivacy.com/?mod[type]=home
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12126&c=207
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A64173-2003Apr20&notFound=true

Blackthorne TA · Nov 22, 2004

chevalier, it's difficult to talk about an act such as the Patriot Act being a complete failure on the grounds you discuss since most of it does nothing to inconvenience the citizenry. You just go on and keep setting up that strawman so you can knock it over; I'll just stand over here in bemusement.

Chandos, your words point out three sections (210, 213 and 215) out of the myriad sections that exist in the act. So, were your words meant to reinforce my statement that the bulk of the act has nothing to do with infringing on privacy and rights? Because that's what you did.

chevalier · Nov 22, 2004

You are missing the point. The idea is that it will create an artificial division between the citizens and the government agents, making the government the close, tangible threat, while moving the terrorists into the realm of abstraction if not downright vain propaganda. As such, it won't serve protection from terrorists.

Blackthorne TA · Nov 22, 2004

No, no, I understand your point and agree with it.

All I'm saying is that since the bulk of the act does not apply to what you're talking about, it's difficult to talk about it being a complete failure by considering what you are talking about.

For example, there are several sections that deal with increased funding for security organizations. Do they infringe on people's rights and freedoms? Are they complete failures?

Chandos the Red · Nov 23, 2004

BTA - I was doing neither. I wanted to point out that your somewhat bizarre statement, while true in the sense that "the bulk" of the Unpatriot Act has not created a constitutional firestorm, the sections that do are viewed by many as an attack on the Bill of Rights. I'm not sure what you hoped to accomplish by this:

Far from it; the bulk of it has nothing to do with infringing on privacy or rights.
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Let's say that there are 215 sections and only ten of those sections violate the Bill of Rights. Well, that's the entire 10 Bill of Rights drafted by James Madison with the help of Thomas Jefferson. You could still argue that the bulk of the act does not violate the Bill of Rights, even though all ten have been violated. I'm sure you are aware by now that you are really reaching hard with this strange "argument" that you have crafted on this topic.

But I'm not sure if you are serious, or if you are even arguing here that the act is really benign in regards to its impact on the Constitution. Or if you believe that the bulk of the act is really meaningless in itself.

All I'm saying is that since the bulk of the act does not apply to what you're talking about, it's difficult to talk about it being a complete failure by considering what you are talking about.
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Did you get John Kerry to help you with that line? It seems you need some help "explaining your explaination." Chev is only pointing out that if the citizens see that the act is more of an attack on them, rather than the terrorists, then the act is a failure. It makes sense to me. But as someone who sees this as an attack on the Constitution, which is what it is intended to do, then it is really a success for the Bushies, since they probably view the Bill of Rights as a roadblock to their schemes anyway.

Blackthorne TA · Nov 23, 2004

the sections that do are viewed by many as an attack on the Bill of Rights
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I would say more like viewed by few. If it was viewed as such by many, there would be quicker reviews and rulings against those sections by the judiciary. There are certainly reviews and rulings taking place, but nobody is up in arms over it because though you are technically correct in your objections, these objectionable things in the act don't affect the average citizen in any way on a day-to-day basis.

Chev is only pointing out that if the citizens see that the act is more of an attack on them, rather than the terrorists, then the act is a failure.
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I understand chev's argument, but you've got to be kidding that most of the US citizens look at the act as an attack on them, so it is utterly ridiculous to talk about the act as a failure in those terms; the last Gallup poll I saw showed that US citizens overwhelmingly support it. That is what I've been trying to say, and nobody has refuted that least of all you. All you've pointed out is how outraged you personally, and groups of librarians and booksellers are by it, but you hardly represent the majority opinion whether you like it or not.

Let's say that there are 215 sections and only ten of those sections violate the Bill of Rights. Well, that's the entire 10 Bill of Rights drafted by James Madison with the help of Thomas Jefferson. You could still argue that the bulk of the act does not violate the Bill of Rights, even though all ten have been violated. I'm sure you are aware by now that you are really reaching hard with this strange "argument" that you have crafted on this topic.
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I'm sorry, but that is complete nonsense. To begin with every section doesn't have to violate a different right. Second, chev's point was the perception of the public that the act is an attack on them rather than terrorists could make it a failure, but what I have been saying all along is that is not the perception with this act, because most of it has nothing to do with infringing on rights, and the average citizen doesn't view it thusly, so there is no point in talking about it in those terms.

So, it is pointless to talk about the complete failure of the Patriot Act if you are going to talk about failures due to people's perception that it is an attack on them when that is not the people's perception. How am I reaching with this argument?

But I'm not sure if you are serious, or if you are even arguing here that the act is really benign in regards to its impact on the Constitution. Or if you believe that the bulk of the act is really meaningless in itself.
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The act in the main is benign in its impact. There are those few sections that may be a problem, and they are being reviewed and ruled on. How does that make the entire act a complete failure? It doesn't, because there are many things in the act that are good for security.

[ November 23, 2004, 17:03: Message edited by: Blackthorne TA ]

Chandos the Red · Nov 24, 2004

BTA - Thank you for misrepresenting my views on the topic. I never said "a majority" of the citizens were outraged over the attacks on the Constitution, even though I believe they should be. And it does not bother me to be in the minority of those who believe that the Constitution is worth defending.

I suppose that it was the "blood on the snow" at Valley Forge that makes me feel that our rights were paid for at a high price. But I still believe that the minority of us who believe in the power of the Constitution, and the system that the Founders crafted, will eventually win out over the puny men who populate the prez's favorite golf course.

Blackthorne TA · Nov 24, 2004

Chandos, your belief that parts of the Patriot Act are an attack on the Constitution is legitimate in some sense, and as you say you're not alone in that belief. I'm not so extreme in my view of it, though I agree that the way some of the sections are worded can lend themselves to abuses.

I don't have a problem with this. The problem I am having is that this is a separate issue with respect to the chain of posts that started with my first post in this thread.

The premise was that the Patriot Act was a complete failure with respect to improving anti-terrorism policework. Not "will be", not even "is", but "was" a complete failure in this respect.

I found that an odd thing to say given no terrorist attacks in the US have occurred since then.

Chev came in with a valid but separate argument that if legislation is seen as an attack on the citizenry instead of the terrorists, it is bound to fail.

I pointed out that though I agree with this, I see it as a completely separate argument to the one I was making for several reasons: First, because the Patriot Act as a whole does not infringe on privacy or rights, it would be difficult to view it as a "complete failure" in that respect. Second, the statement was that the Patriot Act was already a failure, not that it would be in the future sometime when and if the citizenry feel embattled by it. Third, that the citizenry do not currently view the Patriot Act as an attack on them instead of the terrorists.

You then came in and made another separate argument that the Patriot Act is an attack on the Constitution. Since you directed your argument towards a statement I made, I naturally assumed you were trying to point out with your statements how the Patriot Act is a complete failure with respect to improving anti-terrorism policework, and it seemed you were trying to do so by supporting Chev's argument. It now seems you weren't really trying to refute my argument (though you called my statements "bizarre" and stated that I was really reaching with it), but rather took the opportunity to show your disdain for the Patriot Act.

Which is fine, but just a little incongruous since you were directing your statements toward me as if my argument lacked merit.

Chandos the Red · Nov 24, 2004

Well, yes and no. I was pointing out that parts of the Unpatriot Act were an attack on the Constitution. I was not attacking your point in relation to the other posts.

But I thought that Chev's point was also well taken because it really identifies a problem with the act in a much broader sense than any of the other arguments on the topic. The only problem I really have with the act is that parts of it are not Constitutional. Our government officials, including the prez, take an oath of office, which includes their pledges to defend and uphold the Constitution.

Sorry, if there has been misunderstanding but I was not even trying to get into whether the act was a success or not. I took your "bizarre" argument to mean that it was fine that the act violated some parts of the Constitution as long as the bulk of it was working. Although you really did not say that directly, the underpinnings were that the act was a success regardless.

But I don't believe there is a "war on terror" to win. It is a fantasy, invented by the adminstration and the media. Sorry, that's just my feeling. I heard an intersting comment made recently: "If Bush won the election because church-going Christians were fearful that their religious values were under attack here in America, how do Muslims feel about constant meddling by Americans who wish to replace Isalmic institutions with Americanized ones in their homelands?

The good news for Americans in this debate is that we have elections, and we don't have to blow people up to get the results we seek. Nevertheless, the problem is one of policy, not more government control over our lives; nor is it "more guns and ammo." It is that strange mixture of politics and religion that makes this such an irksome problem.

Ragusa · Nov 28, 2004

If Bush won the election because church-going Christians were fearful that their religious values were under attack here in America, how do Muslims feel about constant meddling by Americans who wish to replace Isalmic institutions with Americanized ones in their homelands?
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I think you're right on target Chandos. By accident the Pentagon can tell you more on that, as they just have released a report on what they dubbed "strategic communication". The study arues that the gap between Washington's rhetoric and its actions in the region, as perceived by Muslims, has contributed to a virtually total loss of credibility.

... Muslims do not 'hate our freedom,' but rather, they hate our policies. The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the long-standing even increasing support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan, and the Gulf states ...
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Evil people who hate our freedom, huh?

... when American public diplomacy talks about bringing democracy to Islamic societies, this is seen as no more than self-serving hypocrisy ...[rather they want] ... to be liberated perhaps from what they see as apostate tyrannies that the U.S. so determinedly promotes and defends ... In the eyes of Muslims, American occupation of Afghanistan and Iraq has not led to democracy there, but only more chaos and suffering ...
(...)
The critical problem in American public diplomacy directed toward the Muslim world is not one of 'dissemination of information,' or even one of crafting and delivering the 'right' message ... Rather, it is a fundamental problem of credibility ...
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That one for the folks ( Black Beard Darkwolf? ) who think it was treason to publish footage of that GI shooting the Iraqi - credibility is not a product of secrecy and PR savvy but rather like that: Like virginity you can loose credibility only once, and for the current US administration that happened a while ago.

And going back to topic - in the 1970s Red Army Fraction terrorist hype in Germany we introduced emergency laws and special laws on how to deal with terrorists - to counter a gang of some 30 active madmen and some 1000 sympathisers throughout Germany.
The US hysteria, just take the utterly ridiculous colour coded "threat levels", very much reminds me of that in Germany then - because prior to 911 terrorism was something that used to happen in the wild wide world beyond America's borders, and mockingly I'd say, outside their perception. Just like America today, Germany's "Deutscher Herbst" of 1977 suddenly featured heavily armed police and omnipresent roadblocks and general suspicion.

The practical effect of these laws was marginal (very illuminating to read criminology literature on that), but German security agencies and police merrily invaded privacy of a few million citizens. Once caught, the terrorists were kept in strong isolation under conditions that reportedly amounted to sensory deprivation, and very limited access of the lawyers to the evidence for reasons of secrecy.
Ironically, rather than minimising the threat, these conditions only mobilised a second wave of sympathisers to become terrorists, too, and to 'retaliate' against the state; lacking the intellectual and ideological capacity of the first wave they compensated for that with greater brutality and ruthlessness.
Harsh british anti-terror laws and prison practices worked in a similar way - and greatly helped the IRA to collect funds in America's Irish community.

You don't need to be a Nostradamus to predict that the US efforts, and let's just single out their treatment of "suspected enemy combattants", will only give credibility to the message of islamist propagandists and fundraisers.

Think about the ability of the government to indefinitely detain people they label as enemy combattants without any processual rights or contact to counsel or appeal. In this respect Gitmo is only the most prominent example.

As an example it simply undermines the US claim to respect the rule of law as they contradict the spirit of the constitutional freedoms. Their attemps to spin that away, Mr. Gonzales' screes especially, can't change the disastrous effects this has on US credibility as a whole ... because spin works best at home. As a lawyer I can just turn away in disgust from Gonzales' sophistry.

And we haven't even yet talked about the intrusion into the privacy of US citizens. Police shouldn't be allowed to search your home in your absence, secretly, without your ability to explain or defend yourself or having legal counsel.
I still wait for the case of someone coming home early and shooting a federal agent he mistakes for a burglar (killing a federal officer iirc is a federal crime), or worse, a federal agent shooting a suspect who detects him on a secret search - and dares to be as angry as someone would expect him to get when whe finds a foreigner in his home. It is only a question of time until that happens.
It also isn't the gvt's business to know what you read or which books you buy. And so on, and so on.

The question always is if the leeway harsher legislation gives to the executive branch is really worth the price. I am unpersuaded, very much so.

[ November 29, 2004, 09:21: Message edited by: Ragusa ]

Llandon · Nov 28, 2004

"That one for the folks ( Llandon Darkwolf? ) who think it was treason to publish footage of that GI shooting the Iraqi - credibility is not a product of secrecy and PR savvy but rather like that: Like virginity you can loose credibility only once, and for the current US administration that happened a while ago."

Please tell me when I said, or even implied that it was "treason" to publish that footage? Talk about bad information. I really don't appreciate being named and accused of something I didn't come close to doing.

Taluntain · Nov 28, 2004

This is going completely off topic, please sort it out with Ragusa in PM - he can edit his post if he misquoted you.

Ragusa · Nov 29, 2004

Well, my apologies Llandon. I checked the quote from the Murderer Marine thread. I was being rash and actually mixed you up with Black Beard.

Sorry, my pun.

Cúchulainn · Dec 14, 2004

I was actually thinking about this and a few thoughts came accross my mind - What will happen to the multitude of Americans that willingly funded terrorist groups in N.Ireland such as the IRA? Are they going to be detained without right to legal representation? Have 'charities' such as NORAID been shut down and had their funds frozen? Does anyone care?

joacqin · Dec 14, 2004

But the IRA and those are nice little terrorist a large part of the American population can/could sympathise with. It is not the same thing you know! Completely different case, Americans would never ever systematically support any kind of terrorism. Nope, no sir eeh!

Ragusa · Dec 14, 2004

Well, the US administration stand here is adamant. Try this article: Government lawyer: Detainees have no 'constitutional rights', and let me quote:

Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.

“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her.

Boyle said the military can pick any foreigner who provides support to terrorists or might know of their plans.
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Any questions?

Green asked how the government defined an enemy combatant who aided terrorists or Afghanistan’s now-toppled Taliban regime.

“It is not limited to individuals who carried a weapon and shot at American troops,” Boyle replied. They don’t have to be on the front lines; they can be strategic advisers, intelligence informants, or supply workers including cooks, he said.

Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.” Some detainees have been picked up in Bosnia and others in Africa.
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That I'd like to see: Britain snatching enemy combattants in Hell's Kitchen, Chicago and Boston ... ... the inevitable US uproar would go along the line "violation of sovereignty".

Like Orwell said: Some are more equal than others.

Cúchulainn · Dec 14, 2004

Yes I was forgetting that the IRA are a band of cuddly leprachauns that cause mild mischief like blowing up shopping malls, churches, housing estates and also targeting British soldiers abroad.

chevalier · Dec 14, 2004

It would be up to a newly established military review panel to decide whether to believe her and release her.
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Military panels for judging civilians. Civilians of foreign citizenship, at that. Brilliant. What next? El Presidente strolling around in a uniform and White House laden with marines?

Boyle said the military can pick any foreigner who provides support to terrorists or might know of their plans.
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Oh my... what if the spammers who have my e-mail address have a connection with Al Quaeda? Does that not preclude detention, as well?

Well, constitutional rights are constitutional rights, but there are also basic human rights in the order of natural law and independent from any system of of positive law.

Somehow, Saddam was bad for being a military dictator. Or Fidel. So why the hell isn't that wrong for El Presidente Bush & Federales?

Cúchulainn · Dec 14, 2004

Personally I rank George Bush in league with Saddam and Pinochet - only I think he has the potential to be far more dangerous.

chevalier · Dec 14, 2004

One more thing is that there's no democracy, nor a lawful state, without presumption of innocence.

Presumption of innocence clearly has stopped applying to detainees, who are now treated equally with convicts. This essentially means guilty until proven innocent.

That's why I dare say that Bush's peculiar statecraft is as close to dictature as it can be in a modern democracy.

As for the government lawyer whom Ragusa quotes, I can only wish on him the same fate as detainees go through without a court sentence, or often without any charge at all. Let's begin with sleep deprivation and cavity search. What say ye?

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