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Part Of The Patriot Act Shot Down 618

Posted by timothy
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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Part Of The Patriot Act Shot Down

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  • Who wrote this part? (Score:5, Interesting)

    by Anonymous Coward on Wednesday September 29, 2004 @04:42PM (#10387647)
    I know that Kerry wrote some of the "financial crime" [reason.com] parts of the Patriot Act. I wonder if this was his? Does anyone know?
  • by TykeClone (668449) <TykeClone@gmail.com> on Wednesday September 29, 2004 @04:43PM (#10387658) Homepage Journal
    Yes, I think it is defending your rights - this prevents the government from asking for customer records without a court order.

    What does this do the section 314(a) searches that we must do?

  • Common Sense (Score:2, Interesting)

    by usefool (798755) on Wednesday September 29, 2004 @04:43PM (#10387663) Homepage
    Hopefully we will start to see more challenges against this kind of legislation. Like the old saying - you gave him an inch, he will ask for a foot, it does apply to both ways though.

    It's also lucky that the PA didn't give FBI the power to ignore unfavorable rulings :) or did it?
  • by garcia (6573) * on Wednesday September 29, 2004 @04:45PM (#10387693) Homepage
    Hopefully on appeal the Supreme Court accepts this case.

    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.
  • Question. (Score:3, Interesting)

    by celeritas_2 (750289) <ranmyaku@gmail.com> on Wednesday September 29, 2004 @04:57PM (#10387820)
    Cannot the court subpoena the same records only with more time and difficulty involved?
  • by psychopracter (613530) on Wednesday September 29, 2004 @04:59PM (#10387848) Homepage

    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.)

  • Re:Question. (Score:4, Interesting)

    by Atzanteol (99067) on Wednesday September 29, 2004 @04:59PM (#10387853) Homepage
    Yes. The difference (I believe) being that they will now need to convince a judge that they need to, and can be held accountable. No "fishing" in other words.
  • Judicial Tyrany (Score:3, Interesting)

    by gokeln (601584) on Wednesday September 29, 2004 @05:00PM (#10387866)
    There is a fine line to be found between protecting the rights of individuals and protecting the right of the People to be secure. The Patriot Act sought to define the line, giving the Executive more power to track these financial transactions, without scrutiny of the individual being investigated, and with limited oversight.

    We need some kind of oversight, because the Executive may abuse the power. Not every executive will be as trustworthy as others in regard to protecting the rights of individuals.

    One thing to consider, however, is that with judicial oversight, you can have another form of tyrany, where an overzealous judge prevents an Executive from doing his job to protect the People. We only have an appeals process for this, which hopefully results in a well-reasoned balance of rights. However, as the judicial confirmation process becomes more and more politicized, you can expect more and more partisans being placed in lifetime-tenured posts.

    No judge is ever going to rule less power for the Judicial branch. I, for one, do not welcome our judicial overlords. Lex Rex.
  • by Anonymous Coward on Wednesday September 29, 2004 @05:01PM (#10387868)
    Sounds like a defense of CORPORATIONS rights, which are more and more behind the scenes, creating laws and running the country.

    Exactly. When a law conflicts with corporate interests marketeers are deployed to stir up human concern. The trick is, when a law conflicts with human interests, to find sympathetic corporations that will allow humans to reclaim freedom and justice.

    Pharmaceutical industry vs insurance industry.
    Accountants vs investors.
    Polluters vs growers.
    etc

    Loosen their conspiritorial complacency!
  • Re:good idea! (Score:5, Interesting)

    by mOdQuArK! (87332) on Wednesday September 29, 2004 @05:12PM (#10387998)
    laws (and the accumulated federal code) are just about overwhelming, and have unintended consequences.

    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".

  • by dr7greenthumb (752231) on Wednesday September 29, 2004 @05:13PM (#10388002)
    Actually, in Bin Laden's rationale, he is promoting his people's freedom by attacking the country that has, in his opinion, exploited his country and culture. It has nothing to do with hating freedom or revenge.

    The parallel being drawn by the original poster is how our FF privately organized to form a rebellion against a colonial nation which was exploiting our country in various ways including taxes. Obviously, the exploitation of the Middle East by western corporations is different just as these "insurgents" are different from our FF. The underlying principle is similar though.
  • by ajs (35943) <ajs@ a j s . c om> on Wednesday September 29, 2004 @05:13PM (#10388006) Homepage Journal
    The ACLU is not as consistant as many (myself included) would like. Ideally, they would be a politically neutral organization which fought for civil liberties in American government, but they are not. They have a distinctly liberal take on the matter, which is unfortunate.

    That said, I'm a card-carrying member of the ACLU, and that's a recent change. I'll take their shakey stance on gun control and vouchers and a few other topics because I'm willing to trade my way out of having traded my way out liberty for the sake of security. That's a terrible problem to have to fix and choice to have to make, but I find myself in that position.

    Republicans are not to blame, here. Look at the voting records, and you will find that this abomination of a law call the PATRIOT Act (caps not mine) had broad (almost unanimous) bi-partisan support.

    I'll a) vote anti-incumbant on every slot in this election and b) support the questionable ACLU as a result. I wish that the uniparty had not forced my hand in this way, but obviously they had other priorities.

    The EFF, on the other hand is more even-handed and I am a proud member, having just renewed recently.

    PS: All that said, your particular argument does not hold up (the ACLU's position on vouchers is questionable, but not in the way you suggest). In the case of abortion, we have a policy (handed down from the constitution, as interpreted by the supreme court) that says that some particular thing is protected. The fac that it violates your religeon does not mean that you don't have to pay taxes that support it.

    On the other hand, we don't have a policy that says that students should be taught church doctrin, and so there is no basis for forcing tax-payers to fund this thing that they are opposed to on the grounds of their faith (or lack thereof).

    The argument FOR vouchers is not that you can be forced to pay for something that violates your faith, but that you AREN'T BEING FORCED TO DO SO. You're paying taxes that are being used for vouchers in the same way that some of that money is already paying for food stamps. Food stamps can be spent on Kosher food and that wacky Christian (no offense to Christians as a whole) soap with the tracts on it just as it can be spent on more "secular" foods.

    Vouchers can be used for Catholic or Jewish or Bhuddist school in the same way. No one is being forced to fund a government program of faith-based doctrin, they are being forced to pay for the education that parents feel is most fit to their children.

    Please note that I'm against school vouchers in most cases, but I wanted to make the point that the ACLU is arguing that point wildly incorrectly.
  • Still law though (Score:2, Interesting)

    by sweetshot97 (815470) on Wednesday September 29, 2004 @05:27PM (#10388169)
    Even though it was ruled unconstituional, it is still a law. Courts interprit law. They cannot wipe a law off the books. This is left to the legislative process. So they can continue to use this portion of the Patriot Act, it just won't hold any water in court. Unless however, a higher court throws out the ruling this court made and then it will be enforceable again. But still, if you want that portion out, you have to write it out of the law books.
  • IANAL, IMHO, etc. (Score:5, Interesting)

    by einhverfr (238914) <chris@travers.gmail@com> on Wednesday September 29, 2004 @05:39PM (#10388367) Homepage Journal
    IANAL, but I did read up on this case pretty heavily (the "Under God" one).

    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.
  • by Mr. Slippery (47854) <(tms) (at) (infamous.net)> on Wednesday September 29, 2004 @05:41PM (#10388381) Homepage
    They attempted to strike civilian targets...

    Actually, yes. American "privateers" attacked civilian merchant ships [www.hnn.us].

    And certainly American forces have attacked civilian targets since then (the firebombing of Dresden and Tokyo, the nuclear attacks on Japan).

    I think you might have meant to say that they used guerrilla warfare, which is true. But its a little different than "terrorism"...

    The difference pretty much depends on who gets to write the history and the "rules" of war.

  • Read the law itself (Score:3, Interesting)

    by TheHawke (237817) <rchapin.pelicancoast@net> on Wednesday September 29, 2004 @05:42PM (#10388397)
    The USA-PATRIOT Act was not really built as a anti-terrorism act, but as a addon to the RICO statutes pre-9/11. After 9/11, they put a different wrapper on it and ramrodded it thru the houses. Even the media was snookered by the wrapper and the facade that was built up around it.

    The law in question that got bobbed got a stargate fansite in the dip as I recall.. The posting's in slashdot's archives, but i've not the time to dig for it.
  • by bullitB (447519) on Wednesday September 29, 2004 @05:43PM (#10388410)
    Both viewpoints seem to adhere to the idea of separation of church and state.

    Well, opposition to banning federal money going towards abortions certainly seems to be a church and state separation issue, I'll give you that. Anti-abortion religious followers should not be allowed to tell others how their healthcare money is spent.

    However, opposition to school vouchers is quite a bit different. By not allowing parents to get funding to send their children to private schools, local government is, in effect, requiring that children are taught the same beliefs. As an atheist, I lament that some parents would use vouchers to send their children to (for instance) creationist schools, but what right does the state have to regulate what children are allowed to learn?

    To make this a bit more on-topic, let's say that in a few years (or even now, who knows), a school district teaches that the PATRIOT Act was a universally positive thing, and that the wrongful detaining of many people of Middle-Eastern descent was justified. Well now, a Pakistani family might not be so happy about this being taught to their children, and very likely might want to go to a different school. Is not enforcing an atheist educational policy just as bad as enforcing a classical religious one? The ACLU's position on this matter seems to suggest that they don't support a separation of church and state, but rather the establishment of a national belief system to be taught in public schools.
  • by Jonti (795505) on Wednesday September 29, 2004 @05:59PM (#10388601)
    What about those who are morally or religiously opposed to abortion?

    I'd say if those who have moral reasons are also democrats (!), then they can abide by the democratic results.

    As for those who have religious reasons -- what concern is that of the state? The USA is not a country that can inflict sharia, or any other religiously motivated laws, on its people.

    Where's you from, bud?

  • by einhverfr (238914) <chris@travers.gmail@com> on Wednesday September 29, 2004 @06:02PM (#10388630) Homepage Journal
    Perhaps. But I do find it odd that Scalia and Rehnquist both talked a bit about retiring before September 11th and the patent disregard for the Constitution that the Bush Administration showed afterwards. Now I don't hear anything, and I wonder if they are afraid to retire...
  • by jafiwam (310805) on Wednesday September 29, 2004 @06:06PM (#10388666) Homepage Journal
    The 10k figure is out of date. It's way lower in most states now.

    Also, I work in the banking industry helping bankers present classes over the internet (yeech) and know for a fact they do WAY more than have some computer flag account transfers.

    There are all sorts of automatic checks, plus the "know your customer" encouragement, which ammounts to little more than "wink, wink, nudge, nudge" go find out what your neighbors are doing type digging through transactions.

    My point; don't count on that 10k number keeping you under the radar.
  • Re:good idea! (Score:3, Interesting)

    by einhverfr (238914) <chris@travers.gmail@com> on Wednesday September 29, 2004 @06:11PM (#10388702) Homepage Journal
    Congressmen sponsoring "blatently unconstitutional" legislation, i.e. legislation unconstitional by any reasonable reading of the Constitution should be required to pay the court costs of the challenge, IMO. Would prevent things like the Pledge Protection Act (which is probably dead anyway)...
  • by Banner (17158) on Wednesday September 29, 2004 @06:40PM (#10388947) Journal
    The court is already pretty far from conservative. Only two maybe three judges on it can be called that, most are fairly liberal. If you don't beleive me, look at all the rulings by the court in the last 6 years.

    And a conservative court is one that would be more inclined to rule on the constitution, not current interpretations, in which case the Patriot act would go down pretty quickly. But as we saw with the upholding of McCain-Fiengold, which limits free speech, this court isn't our friend.
  • by Izago909 (637084) * <tauisgodNO@SPAMgmail.com> on Wednesday September 29, 2004 @06:41PM (#10388951)
    The founding fathers weren't terrorists because their motive wasn't terror, but was freedom.
    In all fairness, they used guerilla tactics. Relative to they era, targeting the highest ranking officers first and firing from the shadows could be considered a form of terrorism because it did not uphold the "accepted rules" of war. When compared to today's standards, a sniper targeting a cornel back then is not too different than a terrorist beheading a hostage today. It can be argued that guerilla fighters in the American Revolution were just as much terrorists as the Vietcong were in the Vietnam War. The key difference is that the Vietnam War was more gruesome and dragged on longer because of the technology gap.

    Bin Laden didn't attack the US to promote his people's freedom, he attacked for revenge or somthing to that order.
    The key to defeating an enemy is to understand his goal and methods to reach that goal. Osama is fighting what he perceives as American imperialism. Our reluctance to leave the region after the first Iraq war was interpreted by him, and hundreds of thousands (maybe even millions) of Middle Eastern citizens to be all the proof they needed to confirm their suspicions. They perceive us as a foreign invader, and they perceive themselves as patriots liberating their people. Based on this, you can see how the word patriot is highly subjective based on its point of view. That is why your last sentence " That's why the words patriot and terrorist aren't synonymous" isn't entirely accurate. The phrase "Guerilla combatants" would have made for a much more accurate comparison to terrorists.

    The words "guerilla fighter" and "terrorist" are also not synonyms, but they have similar methods to a common ends. It all depends on the point of view. "Guerilla insurgents" in Iraq are bad because they are against us, and "guerilla insurgents" in the Vietnam War are bad because they were against us; but "guerilla insurgents" in the Revolutionary War were good because they fought for us. People use the word "patriot" to describe "guerilla insurgents" who fight on their side and "terrorist" to describe the ones that oppose us.

    Some may bring up the point about targeting civilians. This suggests either intent, or a lack of it, that results in civilian deaths to achieve a military goal. Al Qaeda intent was to kill civilians on 9/11. Our carpet bombing in Vietnam was intended to target combatants, but unfortunately carpet bombing does not differentiate between soldiers and civilians. As a result, our (in)actions resulted in massive civilian casualties. Now, our carpet bombing and the 9/11 attacks produced the same results (large civilian casualties). The important question I am getting at is: When the dust settles, does intent make a difference if the end result is the same? When answering this question, please keep in mind the scale that the question was posed on. I am not talking about criminal intent in a homicide case. Please don't interpret this post as justifying Al Qaeda's actions, or shaming America's actions in Vietnam. I just want other peoples' opinions of a reasonable comparison. I'm having a hard time answering my own question.
  • by Anonymous Coward on Wednesday September 29, 2004 @06:47PM (#10388987)
    Here is another provision of the Patriot Act for you -- they can do surreptitious searches now w/o telling you about them. For as long as they want. Here is one of them (apparently) caught on the video [freehttp.com].
  • by einhverfr (238914) <chris@travers.gmail@com> on Wednesday September 29, 2004 @08:12PM (#10389693) Homepage Journal
    I respectfully disagree.

    The Patriot act is a problem, but it is not the worst one.

    IANAL...

    The worst problem is that we have an administration who, like Lincoln, incorrectly thinks that he has such a compelling interest that he can unilatterally suspend civil rights and detain individuals arrested on US soil arbitrarily and indefinitely without trial (take a look at Padilla v. Rumsfeld). Certainly I think that there is no more compelling case for suspending Habeus than a rebellion within the country, so Bush's interest is not nearly as compelling as that of Lincoln. Fortunately for Lincoln Congress came to his aid and suspended Habeus under the powers granted Congress in the Constitution. IIRC, the court did eventually find Lincoln's suspension of Habeus unconstitutional and further in Milligan limited the range of the order.
  • by Anonymous Coward on Wednesday September 29, 2004 @09:05PM (#10390023)
    Its secret... or have you forgotten that the patriot act allows secret courts to get evidence which librarians are barred from talking about?

    what's the most chilling to me is not that it may or may not have occurred, its that we CAN"T know if this has happened.
  • by peacefinder (469349) * <alan.dewitt@gm a i l . c om> on Wednesday September 29, 2004 @09:47PM (#10390303) Journal
    Jihad; look it up.

    How's this? [google.com]

    Note especially this definition:

    This term has never been translated by Muslims to mean holy war. Instead, it means to struggle or exert oneself to his or her utmost potential. In Islam, there are two levels of jihad. The greater jihad most often refers to the inner struggle against evil within oneself with the goal of self-improvement for the betterment of one's community and the world as a whole. The lesser jihad refers to the struggle on the battlefield in self-defense if Muslims have been attacked and their right to practice their faith has been aggressively taken away. " Fight in the cause of God against those who fight you, but do not transgress limits. God does not love the transgressors" (Qur'an 2:190). This is an unequivocal statement that only self-defense makes war permissible for Muslims and the goals of war cannot be worldly gain.

    Mind you, I agree that a war against "terrorism" is impossible to win, and that addressing injustice in Iraq without addressing injustices we ourselves perpetrate is not going to be especially effective.

    But please, don't use that bad definition of jihad, and don't claim that the Islamic world has declared war on us. It's not nearly that simple.
  • by RussP (247375) on Thursday September 30, 2004 @12:13AM (#10391166) Homepage
    I'm sorry, but the fact that a law entitled "USA PATRIOT Act" passed the Senate almost unanimously, just 45 days after a major terrorist attack on US soil, with NO discussion or debate, does not strike you as un-democratic?

    Thankfully ONE of our senators, Russ Feingold (D-WI), actually has a clue.

    Russ Feingold is a co-sponsor of the McCain-Feingold campaign finance reform law. This law blatantly violates the First Amendment by outlawing "issue advocacy" ads within 60 days of a general election. It is truly astounding how some on the left can worship a guy who is doing everything within his considerable power to overturn the Constitution -- in the name of that very Constitution no less!
  • by Animats (122034) on Thursday September 30, 2004 @12:57AM (#10391391) Homepage
    The constitutional trouble with the Patriot Act is because the Bush Administration hates judicial oversight, and drafted the Patriot Act to avoid it. Not because judicial oversight interferes with legitimate investigations, but because judicial oversight results in law enforcement being chewed out by judges when they do something dumb.

    President Bush routinely tacks the following paragraph onto the end of almost every executive order [whitehouse.gov], to attempt to evade judicial oversight of that order.

    • This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.
    That appears at the end of every executive order issued this year, except the ones raising pay for senior politically appointed officials. Other presidents would do this occasionally for minor administrative matters, but Bush does it every time.

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