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Part Of The Patriot Act Shot Down
Posted by
timothy
on Wed Sep 29, 2004 03:38 PM
from the checks-and-balances dept.
from the checks-and-balances dept.
jtwJGuevara writes "In a victory today for the ACLU, (and many Slashdotters I presume) the section of the Patriot Act which gives power to the FBI to demand confidential financial records from companies as part of terrorist investigations has been ruled unconstitutional by a U.S. District Judge. Victor Marreo, the District Judge who made this ruling, states that the provision of the Patriot Act in question 'effectively bars or substantially deters any judicial challenge.'"
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this is defending MY rights? (Score:5, Insightful)
Re:this is defending MY rights? (Score:5, Insightful)
Do you want the government to be able to find out you paid $20 to paladin-press.com for that bomb making book, donated $180 to the EFF, and then spent $120 in a house of ill repute in Las Vegas? If so, then keeping financial records confidential is not an issue for you.
But if you want your private affairs private then you want your financial affairs private as well.
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Re:this is defending MY rights? (Score:5, Insightful)
Anyone who thinks that we are today living in the world of 1984 is dillusional. Micheal Moore can put out a movie tearing into the President, and Rush Limbaugh can tear into powerful govenment officials on his show, and its ok.
The reason to stop things like this act now would be to prevent a slippery slope that could lead to a 1984-like world. But we are nowhere near that right now.
There are way to many people that talk as if they are in fear of being hunted down by Ashcroft and thrown into a dungeon in Washington. I guess its fun to fantasize that you are Patrick Henry or something, but get real.
We have historically unprecedented freedoms in America (even with the PATRIOT act now). Striking down this act would simply ensure that (PATRIOT act ^ 10) is not legislated so we still have these rights in 50 years.
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Re:this is defending MY rights? (Score:5, Insightful)
An excellent comment. Just to add to your point, we could be very close to a 1984-like world and we just don't know about it. This is siding on paranoia I know, but (before this judgement) with reduced judicial oversight, what is to stop the executive branch (or DoD) from making mass secret arrests and refusing Habeus Corpus?
I hate sounding so alarmist, and I am agreeing with you, but the folks who are outraged are mostly trying to make a point -- and I think that there is a pretty good reason for the outrage. Civil liberties take lifetimes to fight for, and seconds to lose. Judging from all of the freedom rhetoric, shouldn't we expect the federal government to at least pretend that they're defending our civil liberties? (Damn, that sounds naively idealistic)
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1984 world and today (Score:5, Insightful)
What scares me is the fact that the Bush administration is putting mechanisms in place which can be used to arbitrarily make your life miserable for whatever reasons the executive sees fit. These include no-fly lists, among other things. It scares me that these mechanisms could be used in ways which could effectively silence certain forms of political discourse.
I am not afraid that I might become the next Jose Padilla. I am afraid that I might become punished for talking about airport security, etc. and that I might be forbidden to fly or have other arbitrary sanctions put on my activities which may be difficult to challenge in court.
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Re:this is defending MY rights? (Score:5, Insightful)
Thankfully ONE of our senators, Russ Feingold (D-WI), actually has a clue [archipelago.org].
I, for one, do NOT believe that the USA PATRIOT Act has stopped ANY terrorist attack, anymore than the No-Child Left Behind Act. After all, we haven't had any terrorist attacks since NCLB passed, right? Repeat after me: Correlation != Causation.
The failures that led to 9/11, as I understand them, were not from a lack of power or authority by intelligence agencies. It was due to poor communication and poor management. The "war on terror" is, IMHO, the new "war on drugs". It's an Orwellian war - never-ending war on a faceless enemy that you must support or else you are unpatriotic.
Are terrorists out there? Yes. Not all of them are hail from Saudi Arab^H^H^HIraq. Some are American citizens (McVeigh, for one. And anyone remember the Unabomber?) Will giving up our essential freedoms protect us from the terrorists? No. I don't feel any safer on an airplane now that I know no one on board has a tweezers, nail clips, or cuticle scissors. I don't feel safer knowing the the FBI can demand my library reservations, financial records, and health history, all without my knowledge (secret searches), with no judicial oversight. If you think I'm exaggerating, I suggest you read up a bit [aclu.org].
But the terrorists are really out to get us, folks. They tell us every day, and they are not kidding.
So who are we fighting again? The Eurasians or Eastasians? [online-literature.com]
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Re:Question. (Score:4, Interesting)
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Re:good idea! (Score:5, Interesting)
I believe this indicates a systemic problem - like the grotesque growth of spaghetti code in a legacy application. ("We don't know how the insides work anymore, so we'll keep building wrappers around everything to try and keep it from getting out of control.")
About the only thing I think the founders forgot when they tried to build a system of checks & balances was some kind of automatic expiration process for laws that aren't "maintained" anymore. There should've been some kind of mechanism that would force the legislators to keep reviewing existing laws, and to let them expire if the legislators didn't think it was worth keeping them around. If such a mechanism were required, I bet legislators would be a lot more focused on keeping the legal code "maintainable".
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Who wrote this part? (Score:5, Interesting)
Missed something... (Score:5, Informative)
Link to PDF of the ruling (Score:5, Informative)
ACLU's site is getting hammered; the decision has also been posted on EFF's site:
http://www.eff.org/Privacy/Surveillance/Terrorism/ PATRIOT/20040929_NSL_Decision.pdf [eff.org]
(EFF's press release is here [eff.org].)
Holy cow (Score:5, Funny)
Re:Holy cow (Score:5, Funny)
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Re:Holy cow (Score:4, Funny)
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Slightly off-topic but (Score:5, Insightful)
Praise Jebus and pass the Master Card! (Score:5, Interesting)
I work in an academic library that's also a federal depository. I've had to deal first hand with the implications of this POS raping of our rights
I also live in a city where provisions of this act were (mis)used not to go after terrorists, but after "garden variety" criminals.
In making purchases off of the internet or at a store, I had to pick and choose what I wanted to buy with a CC. Afterall, in the hands of an overzealous prosecutor with an axe to grind, my purchase of the book/film for Lolita and The Tin Drum could be turned into "evidence" of my pedophilla or some other such rot. "Would it play well in Peoria" became my yardstick for all CC purchases. No really. I deal with a government that would inflict such craplaw as the Patriot Act on us with extreme paranoia.
(But, one part of me has a tiny twinge of sorrow at watching this act of justice delayed. It's mightily hard to be fiscally irresponsible when you've switched to a "cash diet" to make all your major purchases. It's going to be a little harder for me to be "good" now.)
Man,do I dislike the "freedom-hating" Patriot act. (Score:5, Insightful)
Bush calls the terrorists "freedom-haters", but ironically I see his administration as one of the biggest "freedom-reducers" in the past 20 years. Heck, under their own logic, by cutting our freedoms, aren't they giving the freedom-hating terrorists what they want?
Is having a free country hard? Yes. But as a country, don't we pride ourselves on doing the right thing, even if it's tough? I thought we did. Is there an alternative to the Patriot act that would preserve our safety and yet not place such restrictive burden on our freedom? I think there is, but it doesn't feel like we even tried looking for it.
P.S. Would the Patriot act have prevented 9/11? This is a guessing game, and it's hard to characterize such a giant bloated act, but most of the provisions under the Patriot act don't seem like they even begin to address the real problems that allowed 9/11 to happen. So ironically, we've given away a lot of freedom for a bunch of laws that wouldn't have made us safer.
The REAL problem of the Patriot Act (Score:5, Insightful)
Is that the government uses it against NON-TERRORISTS.
Not only that, the government has used it against non-terrorists MORE THAN it has been used against terrorists.
It's a bad law, just like the DMCA, that gives the executive branch too much power without the benefit of the checks and balances of which our government is based.
victory for whom? (Score:5, Insightful)
How about "a victory for all of the United States" ?
"Moralisim" if not morals (Score:5, Insightful)
The legislation of Moralisim is what happens when you cannot pass a ban on a book, so you establish a "community standards" test to allow each community to decide to ban the book because it would be bad to "force them to accept the book." In Moralisim, if you can not achieve the ban, you ban banning the ban...
It's a back-handed logical trick, like arguing to authority, where you open up patchwork of recursively nested micro-fifes. Consider "Dry" neighborhoods in "Wet" cities in "Dry" counties. You get to a place where you can't ban the book, so you ban yourself from controlling the ban on books and leave it up your political constituents to "decide for themselves".
It produces little political kingdoms where vocal extremests and idealogues can stake out parts of the landscape for various dogmatic purposes.
It also "levels the playing field" in a way that isnt right, but that "sounds fair" to those who are not paying proper heed. This ersatz seeming fairness can then be used as "authority" unilaterally. It rases a cloud of uncertainty where any stupid thing becomes possible as an "act of the people" because all "rights" become beasts of equal prescidence.
Consider: I have the right to keep and bare arms, you have the right not to be gunned down at the Circle-K. These two rights do *not* hold equal precidence, the right not to be gunned down is ever-so-more significant. This does *NOT* however mean that the right to keep and bare arms is somehow "punctured" and suddenly goes away. The fact is that these two rights are not really in conflict because the responsable exercise of one doesn't lead enexorably to the violation of the other.
Compare this then to "smoking", you have the right to smoke and I have the right not to. Here the right not to smoke trounces the right to smoke. You are asked to step out side. It didn't have to be that way, if the smokers had always "smoked responsibly" by observing other peoples right to smoke, they would have stepped out side all along and there woudn't have to be bans. (They probably wouldn't throw polyester butts on the gound either were responsibility the watchword in smokers... 8-) But the refrain of "why do I have to leave, I have the right to somke" with the hidden codicil "anywhere I damn well please no matter what the consequences."
See, the responsibility has gone, along with most of the burden of dilligence and accountability, and so "rights" rule supreme.
This is the inevetable result of Moralist policies. Moralisim is the proverbial washing-of-hands. "We didn't rule on this, it is the will of our populous and our populous has that right." Nudge nudge, wink wink...
The PATRIOT Act is a natural outgrowth of the Moralist agenda. It supports a vacation of responsibility and accountability in the name of preserving the "right to safety." The penetration and disapation of the "right to privacy and due process", it says, must be spent as the inferior right because in the moralist realm whenever two rights come into conflict one must be supreme, a "true right" and one must be defeated utterly as not having really been a right at all.
What's actually kind of funny is that Moralisim is a revival of the old Might makes Right paradigm. We set our ideals up against one another to see which one will beat the other to death in a court of public spectacle.
So there is a hierarchy of rights, but only in the presence of responsibilities and accountabilities.
But it really _isn't_ any kind of balancing act. You are not supposed to pay for one right, like safety, by betraying another, like due process.
You are supposed to pay for rights with the currency of responsibility.
We harvest today the fruits of terrorisim becau
Re:This means nothing (Score:5, Insightful)
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Re:This means nothing (Score:5, Informative)
The loser needs to appeal it to the supreme court for it to affect the entire US.
This particular case only applies within the district court's jurisdiction. It hasn't been to an appeals court yet.
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But (Score:4, Informative)
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IANAL, IMHO, etc. (Score:5, Interesting)
The Supreme Court ruled on the case, and overturned the appellate's decision on a technicality. The analysis I read (not my own) was that this could likely be used in another juristiction to force the issue directly to the supreme court on merits. Hence we have the (certainly unconstitutional and probably meaningless) Pledge Protection Act which is supposed to remove the issue of the Pledge from the eye of the court.
Now, it seems to me that this case is certainly going to be one which will go before the Supreme Court just because it is an important legal controversy.
My own opinion (layman) is that the Supreme Court will rule, as they did in case of Hamdi and the Guantamamo Bay detainees, that executive power cannot be removed from judicial oversight. Of course, they could also rule as they did in Padilla that the case was improberly brought before the court and send it back on a technicality. My layman's opinion though with the Padilla case is that Hamdi represents a strong enough precident to essentially challenge the constitutionality of Padilla's classification, so the technicality doesn't really give the government much wiggle room once the Habeus petition is properly filed.
Now to the case in question. Hamdi is of particular importance because in my analysis of how the court will rule (Layman's analysis IANAL, etc) because it exposes deep divisions within the Court with regard to the level of executive and legislative authority allowed within the framework of the War on Terror. In the opinion of the Court, even the fact that Hamdi was detained in the theater of operations of an armed conflict did not deny him the right to at least a minimum due process of law and some form of judicial check under Habeus petitions. Notably, the Opinion of the Court was only endorsed by 4 justices (Kennedy, O'Connor, Rehnquist, and Breyer) though Souter and Ginsberg's dissenting opinion eventually endorses the action of the court but under protest.
4 Justices in two dissenting oppinions in Hamdi actually held that the detention of Hamdi was in fact illegal, and that it was not enough to simply allow him to challenge his "enemy combatant" classification. The opinion of Souter and Ginsberg was that the detention was not properly endorsed by Congress and was therefore illegal. They did not, however, challenge the plurality opinion that Habeus Corpus and due process could be observed by merely giving Hamdi a chance to present an alternative view before the judiciary.
Scalia and Stevens dissented, arguing that *any* detention without charge or trial is a violation of due process and habeus corpus rights and can only be done in the event where Congress suspends Habeus.
Only Thomas suggested that the government should be able detain Hamdi indefinitely without trial.
The decision is available at the Supreme Court's Web site here. [akamaitech.net] This link is included so that other laymen can read the opinions and reach their own conclusions.
If Hamdi is any indication of the court's responses to the question of judicial oversight in the war on terror, it seems that the 8-1 opinion is that the court *must* have strict oversight in such a way as to ensure that the Constitution and rights of the citizens are adequately protected. Of course, it could be vacated on a technicality, but this would still, I think, provide a powerful case for even individuals in other circuits. I don't at this time see the court doing anything differently.
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Say what? (Score:5, Informative)
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This means something (Score:5, Informative)
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Re:This means something (Score:5, Funny)
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Re:This means something (Score:4, Funny)
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Re:This means something (Score:5, Funny)
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Re:This means something (Score:5, Funny)
You wear sandals as a substitute for jeans or shorts? I really do think your office needs to tighten up its dress code a wee bit.
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Re:This means something (Score:5, Funny)
That is, unless it's vetoed by Diana Ross.
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Re:This means nothing (Score:5, Interesting)
More than just that, hope that someone else wins in November and appoints some less conservative individuals to take their seat among the other justices.
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Re:This means nothing (Score:5, Funny)
This is slashdot, call somebody a fascist or a pirate, roll around in it a while.
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Re:This means nothing (Score:5, Funny)
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Re:This means nothing (Score:5, Funny)
What was I saying?
Doesn't matter, I'm going to sleeee......zzzzzzzzzzz
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Re:This means nothing (Score:5, Funny)
I suggest the former - you can at least spell that one.
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Re:This means nothing (Score:5, Insightful)
This judge's ruling is binding within his jurisdiction. That means it's a settled issue within that district. This will undoubtedly be appealed to an appellate court, and once it hits the appellate level, the appeals court will re-examine the conclusions of law. The conclusions of fact, though, are supreme and cannot be re-examined by any court unless they are "as offensive to the senses as a three day old mackerel". (For non-lawyers, yes, that is the legal standard used. The precedent in question is a funny read.)
Once the appellate court rules on it, the judgement is binding within the appellate court's entire jurisdiction. At this point, the law is effectively dead. Other appellate courts will refer to this first appellate court in their own decisions, and it's overwhelmingly likely all Federal circuits will come to the exact same decision.
The Supreme Court accepts less than one percent of the cases appealed to it from the appellate court level. The cases it accepts tends, overwhelmingly, to be cases which have been handled in different ways by different appellate courts (a rare occurrence), or cases which it feels to possess unusual relevance to Constitutional law.
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Re:This means nothing - Thanks for the advice! (Score:5, Funny)
(Poster then continues on to educate Slashdot readers on the "real" legal facts...)
Thanks for your legal advice!
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you know nothing (Score:5, Informative)
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Please remind me. (Score:5, Insightful)
Thanks in advance.
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Voting records (Score:5, Informative)
Baldwin, Barrett, Blumenauer, Bonior, Boucher, Brown (OH),Capuano, Clayton, Conyers, Coyne, Cummings, Davis (IL), DeFazio, DeGette, Dingell, Farr, Filner, Frank, Hastings (FL), Hilliard, Honda, Jackson (IL), Jackson-Lee (TX), Johnson, E. B., Jones (OH), Kucinich, Lee, Lewis (GA), McDermott, McGovern, McKinney, Meek (FL), Miller, George, Mink, Mollohan, Nadler, Ney, Oberstar, Olver, Otter, Owens, Pastor, Paul, Payne, Peterson (MN), Rahall, Rivers, Rush, Sabo, Sanchez, Sanders, Schakowsky, Scott, Serrano, Stark, Thompson (MS), Tierney, Udall (CO), Udall (NM), Velazquez, Visclosky, Waters, Watson (CA), Watt (NC), Woolsey, and Wu
and in the Senate: Feingold
http://clerk.house.gov/cgi-bin/vote.asp?year=20
http://www.senate.gov/legislative/LIS/roll_call
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Re:The ACLU isn't sane. (Score:4, Insightful)
You act as if the ACLU has an agenda that they are trying to disguise under the ploy of "Civil Liberties."
Oh, wait. They do.
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Re:The ACLU isn't sane. (Score:5, Insightful)
They're both consistent. Keep religion out of public legislation, whether it's laws that potentially support a religion (school vouchers) or laws that run afoul of some people's religious sensibilities (abortion.)
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Re:Common Sense (Score:5, Insightful)
I don't think this is a good explanation of why PATRIOT act is bad. I reject is because it violates the Popperian criterion of good law (not to be mistaken by the more famous Popperian criterion [wikipedia.org] of what is and what isn't scientific). Popper said that it is reasonable to assume that sooner or later some rotten scoundrels will gain power. It's not important who they will be precisely, but whatever your politcal views might be you must agree that a likelihood of such event is rather high. So whatever law you want to have in you country, don't ask yourself the question "how this law can be used in good hands". Ask the question "how this law can be used when the filthiest, dirtest, stupidest bastards will rule my country (and sooner or later they probably will)". Only the law that cannot be used to anything wrong EVEN by the most vicious ruler is truly good. Now, PATRIOT act could maybe be a good idea in the hands of pure angels. Even if you think Bush and Cheney are as good as angels, you can't seriously think they will rule forever, can you? And just imagine what a malevolent ruler can do with this act...
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Defition of terrorism (Score:4, Informative)
The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons.
Source [reference.com]
You'll note that there is no distinction between governments or civilians. One could argue that a rebellion (and yes, the Founding Fathers were British citizens at the time) is a form of terrorism, as is destruction of property like the Boston Tea Party and other attacks on forts & munitions before the Revolution was official.
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Re:Yay, Rah, Go Constitution! (Score:5, Insightful)
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Re:Yay, Rah, Go Constitution! (Score:5, Insightful)
And that is why we will be targets for terrorism. They have declared war against us. Jihad; look it up. So, since they are trying to save lives in the goal to wipe out the infidels, why would it be a problem if they set off a 50 megaton device in the center of NY, LA, or Chicago? If they win, they can justify it later as saving total lives, and someone else will target them for being so conceited and pretentious.
The only way to "win" the war on terrorism is to identify why we are targets, and eliminate the reasons. I'll give you a hint, invading a country with very little international support isn't helping. In fact, terrorist organizations control more territory in Iraq than before the war. Look at all the "do not go" zones for American military. They are listed as such because terrorists control them. Terrorists that wouldn't exist if we hadn't invaded their homeland.
When the only country to have used nuclear weapons keeps lecturing others not to do it, it looks pretty bad. Do as we say, not as we do.
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Re:Yay, Rah, Go Constitution! (Score:5, Insightful)
If you're looking only at the body count, which let me first say is a skewed way of examining things, the US occupation so far probably was not any less bloody than Saddam's reign.
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There is no right to security (Score:5, Insightful)
There is no such right. There cannot be, because it is impossible to provide it, as long as people continue to meet each other. At some point you have to trust your neighbor not to try to kill you; in part, you rely on people being mostly reasonable, and in part, you earn the trust by behaving in a reasonable manner towards your neighbor.
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Well, damn, I have to say... (Score:5, Insightful)
Something makes me think 'the terrorists' and Ashcroft have frighteningly similar opinions on -that-, though. Both would rather live in a theocracy...
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