[BlackGriffen]

Gah!
Excerpt:

Congress approved a bill on Friday that expands the reach of the Patriot Act, reduces oversight of the FBI and intelligence agencies and, according to critics, shifts the balance of power away from the legislature and the courts.

A provision of an intelligence spending bill will expand the power of the FBI to subpoena business documents and transactions from a broader range of businesses -- everything from libraries to travel agencies to eBay -- without first seeking approval from a judge.

Can we say unconstitutional beyond the point of fubar?

Intelligence spending bills are considered sensitive, so they are usually drafted in secret and approved without debate or public comment.

Chris Schroeder, a Duke law professor and former assistant attorney general in the office of legal counsel at the Justice Department, said the re-insertion shows that "people who want to expand the powers of the FBI didn't want to stop after Patriot II was leaked."

"They are going to insert these provisions on a stealth basis," Schroeder said. "It's insidious."

BlackGriffen

[thunderous_funker]

I knew this Bill was up, but I didn't know they had ended debate on it. I've been looking for news on it over the last couple of days and couldn't find anyone in the "liberal" media talking about anything but Michael ****ing Jackson.



There will be backlash. There must be.

Yet another argument for honest conservatives to oppose Bush's reelection. If this guy can twist arms in Congress to get this kind of horror pushed through in an election year, just imagine what kind of crap is being planned for the second term when he can tell the electorate to **** themselves.

[eklipse]

Originally posted by thunderous_funker:
I've been looking for news on it over the last couple of days and couldn't find anyone in the "liberal" media talking about anything but Michael ****ing Jackson.

How old was this Jackson boy?

[thunderous_funker]

Originally posted by eklipse:
How old was this Jackson boy?

[lil'babykitten]

Originally posted by eklipse:
How old was this Jackson boy?

ROFLMAO!

[Lerkfish]

Originally posted by BlackGriffen:
Gah!
Excerpt:
Can we say unconstitutional beyond the point of fubar?





BlackGriffen

prong one.

[voyageur]

Originally posted by BlackGriffen:

I'm glad someone noticed. It's become the modus operandi of the Bush administration to push through one controversial bill after another through on Friday afternoons in the hopes that we Americans are too busy thinking about the weekend's parties to listen to the news Friday night, and by Monday morning, it's all back to Michael Jackson again.

When are we going to wake up and get mad?

[spacefreak]

Originally posted by voyageur:
I'm glad someone noticed. It's become the modus operandi of the Bush administration to push through one controversial bill after another through on Friday afternoons in the hopes that we Americans are too busy thinking about the weekend's parties to listen to the news Friday night, and by Monday morning, it's all back to Michael Jackson again.

When are we going to wake up and get mad?

The time to wake up, get mad, and appeal to your representatives is BEFORE the debate ends and the voting takes place.

Blame yourself if you didn't contact your reps. Blame your reps if they don't reflect your views in their voting. Don't blame Bush because you're too busy towards the end of the week to take notice of what's going on in congress.

[BlackGriffen]

Originally posted by spacefreak:
The time to wake up, get mad, and appeal to your representatives is BEFORE the debate ends and the voting takes place.

Blame yourself if you didn't contact your reps. Blame your reps if they don't reflect your views in their voting. Don't blame Bush because you're too busy towards the end of the week to take notice of what's going on in congress.

Well, see, they snuck it in to a bill that doesn't normally get public debate because a lot of the items are of a sensitive nature.

So, yeah, I blame Ashcroft, DeLay, and Bush for being sneaky bastards. I also blame Bush for not representing my views (he, too, is an elected official).

I'm in between reps right now, though, so I'll stick with campaigning to put the collective political head of this administration on a pike on voting day as a warning to all those who would try to pull the same stunts in the future.

BlackGriffen

[The Ayatollah]

Originally posted by BlackGriffen:
I also blame Bush for not representing my views (he, too, is an elected official).

If Bush bothered to represent the views of all Americans, there would be chaos and stagnation. He represents the views of the people that voted for him AND the views of other, carefully calculated segments of the people whose votes he also wants. Such is the essence of a democratic system.

Ted Kennedy doesn't represent my views as he pontificates daily and urinates on all that is sacred in American life. You don't see me bitchin' about it.

[vmpaul]

Originally posted by thunderous_funker:

Yet another argument for honest conservatives to oppose Bush's reelection. If this guy can twist arms in Congress to get this kind of horror pushed through in an election year, just imagine what kind of crap is being planned for the second term when he can tell the electorate to **** themselves.

That's my question here. Who's supporting this in Congress? I heard rumblings that even the Conservatives were uncomfortable with the erosion of civil rights under the Patriot Act. Were they just blowing smoke?

[tie]

Originally posted by spacefreak:
The time to wake up, get mad, and appeal to your representatives is BEFORE the debate ends and the voting takes place.

Blame yourself if you didn't contact your reps. Blame your reps if they don't reflect your views in their voting. Don't blame Bush because you're too busy towards the end of the week to take notice of what's going on in congress.

Wow, two posts on the same day Spacefreak blames Bush for supporting bad legislation (other was the energy bill -- "It's an Iranian bazaar, not an energy bill. It's a leave-no-lobbyist-behind bill," said Sen. John McCain (R., Ariz.).) Maybe we have a new conversion coming.

[SimeyTheLimey]

Blackgriffin: do you have a mainstream source for that vote? I've searched, and I can't find one.

The official Congressional site is called Thomas. It says that S.22, the Justice Enhancement and Domestic Security Act of 2003 (better known as Patriot II) is still in the Judiciary committee. The Congressional Record says the same thing. Westlaw is a subscription site and it also says that the bill is still in committee. Those tools tend to be very up to date and accurate. I'd trust them on legislative bill tracking far more than a magazine like Wired. Wired is just a technology magazine, not a general news source and certainly not a legislative source.

By the way, here are the names of the sponsors of this act:

Sen. Daschle introduced the bill.
The Co-sponsors are: Sen Biden Jr., Joseph R. - 1/7/2003 [DE] Sen Boxer, Barbara - 1/9/2003 [CA] Sen Clinton, Hillary Rodham - 1/7/2003 [NY] Sen Corzine, Jon - 1/7/2003 [NJ] Sen Dayton, Mark - 1/7/2003 [MN] Sen Durbin, Richard J. - 1/7/2003 [IL] Sen Kennedy, Edward M. - 1/7/2003 [MA] Sen Lautenberg, Frank R. - 6/17/2003 [NJ] Sen Leahy, Patrick J. - 1/7/2003 [VT] Sen Mikulski, Barbara A. - 1/16/2003 [MD]
Sen Murray, Patty - 1/7/2003 [WA] Sen Reed, John F. - 1/7/2003 [RI]
Sen Sarbanes, Paul S. - 2/3/2003 [MD] Sen Schumer, Charles E. - 1/7/2003 [NY]

Maybe some of you Democrats who oppose it should direct your fire at the members of your own party who support it?

[Joshua]

Originally posted by SimeyTheLimey:
Blackgriffin: do you have a mainstream source for that vote? I've searched, and I can't find one.

This is all I could dig up, and it doesn't fit with the Wired piece at all.

[BRussell]

Patriot Act II. It sounds like a Steven Seagal movie. But yeah, I haven't seen anything else about this on any of the standard news websites.

[Spliffdaddy]

By the way, here are the names of the sponsors of this act:

Sen. Daschle introduced the bill.
The Co-sponsors are: Sen Biden Jr., Joseph R. - 1/7/2003 [DE] Sen Boxer, Barbara - 1/9/2003 [CA] Sen Clinton, Hillary Rodham - 1/7/2003 [NY] Sen Corzine, Jon - 1/7/2003 [NJ] Sen Dayton, Mark - 1/7/2003 [MN] Sen Durbin, Richard J. - 1/7/2003 [IL] Sen Kennedy, Edward M. - 1/7/2003 [MA] Sen Lautenberg, Frank R. - 6/17/2003 [NJ] Sen Leahy, Patrick J. - 1/7/2003 [VT] Sen Mikulski, Barbara A. - 1/16/2003 [MD]
Sen Murray, Patty - 1/7/2003 [WA] Sen Reed, John F. - 1/7/2003 [RI]
Sen Sarbanes, Paul S. - 2/3/2003 [MD] Sen Schumer, Charles E. - 1/7/2003 [NY]

If Daschle thinks it's a good idea - then I oppose it, whatever it is.

[thunderous_funker]

Originally posted by Spliffdaddy:
If Daschle thinks it's a good idea - then I oppose it, whatever it is.

Something we can certainly agree on. Daschle is a complete phoney.

[voodoo]

Originally posted by Spliffdaddy:
If Daschle thinks it's a good idea - then I oppose it, whatever it is.

[Lerkfish]

Originally posted by SimeyTheLimey:
Blackgriffin: do you have a mainstream source for that vote? I've searched, and I can't find one.

The official Congressional site is called Thomas. It says that S.22, the Justice Enhancement and Domestic Security Act of 2003 (better known as Patriot II) is still in the Judiciary committee. The Congressional Record says the same thing. Westlaw is a subscription site and it also says that the bill is still in committee. Those tools tend to be very up to date and accurate. I'd trust them on legislative bill tracking far more than a magazine like Wired. Wired is just a technology magazine, not a general news source and certainly not a legislative source.

By the way, here are the names of the sponsors of this act:

Sen. Daschle introduced the bill.
The Co-sponsors are: Sen Biden Jr., Joseph R. - 1/7/2003 [DE] Sen Boxer, Barbara - 1/9/2003 [CA] Sen Clinton, Hillary Rodham - 1/7/2003 [NY] Sen Corzine, Jon - 1/7/2003 [NJ] Sen Dayton, Mark - 1/7/2003 [MN] Sen Durbin, Richard J. - 1/7/2003 [IL] Sen Kennedy, Edward M. - 1/7/2003 [MA] Sen Lautenberg, Frank R. - 6/17/2003 [NJ] Sen Leahy, Patrick J. - 1/7/2003 [VT] Sen Mikulski, Barbara A. - 1/16/2003 [MD]
Sen Murray, Patty - 1/7/2003 [WA] Sen Reed, John F. - 1/7/2003 [RI]
Sen Sarbanes, Paul S. - 2/3/2003 [MD] Sen Schumer, Charles E. - 1/7/2003 [NY]

Maybe some of you Democrats who oppose it should direct your fire at the members of your own party who support it?

I oppose the law, regardless of who authors it.

I'm concerned about the ISSUE of eroding civil liberties, not the partisanship of the bills involved.
....this is the primary difference between me and a bush apologist.

[einmakom]

Originally posted by Lerkfish:
I oppose the law, regardless of who authors it.

I'm concerned about the ISSUE of eroding civil liberties, not the partisanship of the bills involved.

If that professed concern were true and consistent, it would also mean you would oppose entitlements masquerading as compassion, because they erode property rights.

While I thank you for your concern here, I wish it were present on all civil liberty issues.

[Lerkfish]

Originally posted by einmakom:
If that professed concern were true and consistent, it would also mean you would oppose entitlements masquerading as compassion, because they erode property rights.

While I thank you for your concern here, I wish it were present on all civil liberty issues.

making my views conform to your expectations is not a number one priority of mine....you overvalue the level of importance of your approval in my day to day life.

[petehammer]

Originally posted by einmakom:
If that professed concern were true and consistent, it would also mean you would oppose entitlements masquerading as compassion, because they erode property rights.

While I thank you for your concern here, I wish it were present on all civil liberty issues.

Huh? Do you just enjoy twisting Lerk's words to match your own agenda?

Perhaps I should say: If that professed concern were true and consistent...

...why do you hate poor people?

[einmakom]

Originally posted by Lerkfish:
making my views conform to your expectations is not a number one priority of mine....you overvalue the level of importance of your approval in my day to day life.

Nonsense. I don't expect you to become consistent anytime soon, but it doesn't prevent me from pointing out the contradictions either. It was you who asked where compassionate conservative policy was, and then wasn't much satisfied that compassionate policy is preserving people's property rights (a civil liberty if there ever were one) and helping the less successful by voluntary means.

[Lerkfish]

Originally posted by einmakom:
Nonsense. I don't expect you to become consistent anytime soon, but it doesn't prevent me from pointing out the contradictions either. It was you who asked where compassionate conservative policy was, and then wasn't much satisfied that compassionate policy is preserving people's property rights (a civil liberty if there ever were one) and helping the less successful by voluntary means.

as I said, you've overvalued the importance of your approval to me. The more you say, the more you reinforce the wisdom of my evaluation.

do you have anything to add to the topic, or do you wish to continue the ad hominem...completely pointless as it is?

[einmakom]

Let's tie one of the elements of the PATRIOT ACT to the property rights civil liberties issue- One of the things the ACT enables government to do is snoop bank accounts to report back financial activity.

Here we go:

The Patriot Act makes it far easier for the feds to vacuum up Americans’ financial records without a warrant. Banks are now required to gather far more information on their clients - their background, their sources of income, their financial behavior, etc. Money Laundering Alert, a pro-government newsletter, described one financial provision of the Patriot Act as a “dream-come-true information gathering tool for U.S. agencies,” extending a “welcome mat to the Central Intelligence Agency, National Security Agency and other U.S. counterparts” to look at the new financial information on American citizens and others.

The Patriot act entitles the U.S. government to penalize anyone in the world who allegedly violates U.S. money laundering laws. If a foreign bank has a single dollar deposited or held in a U.S. bank, or wires a single dollar through the United States, the Bush administration claims jurisdiction over that bank’s operations anywhere in the world. Treasury Department chief counsel David Aufhauser warned foreign economics ministers that “there will be hell to pay” for any nation that doesn’t aid the U.S. war against terrorism.

The Justice Department is exploiting powers gained via the Patriot Act to confiscate millions of dollars from foreign banks operating in the United States in cases with no terrorist connections or allegations. The Justice Department used the Patriot Act to confiscate the bank accounts of Canadian telemarketers accused of fraud.

The Patriot Act creates other new pretexts to seize private property. In 1998, the Supreme Court ruled that the Customs Service’s routine confiscation of money from international travelers who failed to declare their cash to the government “violates the Excessive Fines Clause [of the Eighth Amendment of the Bill of Rights] if it is grossly disproportional to the gravity of a defendant’s offense.”

The Patriot Act effectively overturned the Supreme Court decision by creating a new crime of “bulk cash smuggling.” Anyone who leaves or enters the U.S. without declaring that they possess more than $10,000 in cash or currency instruments can be stripped of their money and sent to federal prison for five years.

The Patriot Act declared: “The intentional transportation into or out of the United States of large amounts of currency... is the equivalent of, and creates the same harm as, the smuggling of goods.” Congress never explained how a person became a smuggler merely by transporting his own money.

Of course, government stealing money from private individuals is nothing new- it's just normally done under the context of being compassionate.

[SimeyTheLimey]

Originally posted by Lerkfish:
I oppose the law, regardless of who authors it.

I'm concerned about the ISSUE of eroding civil liberties, not the partisanship of the bills involved.
....this is the primary difference between me and a bush apologist.

"Bush apologists." That sounds like one of those an ad hominems that you pretend to dislike. There is no need to call people names, Lerk. All I did was give the list of sponsors of the bill (which, apparently has not yet passed). The question was asked above who the supporters of the bill are. I answered the question.

Now, it is interesting that this bill that people maligned as being the product of Bush (hisssss!) and Ashcroft (booo! Woman stage left has fit a la The Crucible) is actually rather bipartisan. So what's going on, Lerk? Ted Kennedy and Hillary Clinton are in the conspiracy. Does that mean we have reached "Prong Four?"

[petehammer]

Originally posted by SimeyTheLimey:
<snip>

I thought you had gone away for a while, according to your post somewhere else.

What happenend?

[BRussell]

Originally posted by petehammer:
I thought you had gone away for a while, according to your post somewhere else.

What happenend?

It looks like Lerkfish's posts tempted him back into the ring.

[voodoo]

Originally posted by petehammer:
I thought you had gone away for a while, according to your post somewhere else.

What happenend?

Well since Zimphire cooled off, Scott_h the disgraced mod (Echelon and the carcass) has calmed down, moki entered a state of zen and peace with EU and Spliffdaddy began his quest of wisdom the space for a right wing nutcase was available.

[thunderous_funker]

Originally posted by SimeyTheLimey:
"Bush apologists." That sounds like one of those an ad hominems that you pretend to dislike. There is no need to call people names, Lerk. All I did was give the list of sponsors of the bill (which, apparently has not yet passed). The question was asked above who the supporters of the bill are. I answered the question.

Now, it is interesting that this bill that people maligned as being the product of Bush (hisssss!) and Ashcroft (booo! Woman stage left has fit a la The Crucible) is actually rather bipartisan. So what's going on, Lerk? Ted Kennedy and Hillary Clinton are in the conspiracy. Does that mean we have reached "Prong Four?"

This has the sound of a man who has been lurking a little too long and letting steam build up a little too much.

Regular smaller blasts can alleviate this.

Good to see ya, Simey. Hope all is well.

[Lerkfish]

Originally posted by SimeyTheLimey:
"Bush apologists." That sounds like one of those an ad hominems that you pretend to dislike. There is no need to call people names, Lerk. All I did was give the list of sponsors of the bill (which, apparently has not yet passed). The question was asked above who the supporters of the bill are. I answered the question.

Now, it is interesting that this bill that people maligned as being the product of Bush (hisssss!) and Ashcroft (booo! Woman stage left has fit a la The Crucible) is actually rather bipartisan. So what's going on, Lerk? Ted Kennedy and Hillary Clinton are in the conspiracy. Does that mean we have reached "Prong Four?"

LOL! I can feel the love....are you coming on to me?

[BlackGriffen]

Simey,
If you had read the article, instead of just dismissing it, you would know that this is not an actual passage of PA2. This is taking some of the more controversial powers from PA2 and attaching them as a rider to an intelligence spending bill.

BlackGriffen

Edit: thought I should add, I apologize for not being more clear on this.

[finboy]

Originally posted by Spliffdaddy:
If Daschle thinks it's a good idea - then I oppose it, whatever it is.

Add Chuck Shumer to that list for me. He's a putz.

This whole thing smacks of FUD. How the hell do you get a court order (a subpoena) without a judge or grand jury involved?

[thunderous_funker]

Originally posted by finboy:
Add Chuck Shumer to that list for me. He's a putz.

This whole thing smacks of FUD. How the hell do you get a court order (a subpoena) without a judge or grand jury involved?

I guess you missed that provision of the Patriot Act. As long as its part of an "ongoing terrorism investigation" Feds don't need a warrant or a subpoena for search and seizure.

Now Patriot II extends that even further to areas that were previously exempt from even this special dispensation.

[Lerkfish]

Originally posted by finboy:
Add Chuck Shumer to that list for me. He's a putz.

This whole thing smacks of FUD. How the hell do you get a court order (a subpoena) without a judge or grand jury involved?

welcome to the new world order.

that is PRECISELY what the patriot act allows them to do.

NOW do you understand the concept of eroding civil liberties? Come a little closer to home?

[SimeyTheLimey]

Originally posted by finboy:
How the hell do you get a court order (a subpoena) without a judge or grand jury involved?

You are confusing statutory protections for ones required by the Constitution. The 4th Amendment is actually a lot less protective than people think. In some cases Congress has stepped in by requiring additional protections that the Constitution (as interpreted by the Supreme Court) does not require. A classic example is wiretapping. Non-physically invasive wiretapping isn't a "search" for 4th Amendment purposes. The Title III warrant requirement is a statutory protection that Congress enacted because it didn't like the way a case in the Supreme Court came out. In other words, Congress wanted more protections than the Constitution requires. Of course, that means that Congress is free at any time to repeal or adjust the requirements either in all cases, or in response to some particular situation -- such as terrorism.

Other "searches" that still aren't searches for the purposes of the 4th amendment: your trash once you put it out in the street or a dumpster. The police can do anything they want with that. Your mail can also be checked provided the government only looks at the outside of the envelopes and doesn't actually prevent it from being delivered. Also, the numbers you call on your telephone, or who call you, can be recorded without a warrant. Likewise (IIRC), e-mail address and URLs, but not the content of e-mails. They need a warrant to open your e-mail.

I haven't seen cases on point, but I am fairly sure that records that aren't under your control -- things like bank records, library records, and so on -- wouldn't be covered by the 4th Amendment as a Constitutional matter. You don't have a privacy interest in information you voluntarily disclose to third parties no matter how protective you feel about it. If there are legal barriers to search, they are probably statutory. That means they are subject to change.

So, what Patriot I or II can adjust has nothing to do with the Constution. Congress can't change that and nothing Congress wants to do goes anywhere near the actual constitutional boundaries. It's also worth bearing in mind that most of these additional statutory protections that everyone seems to wrongly assume are constitutional, only date to around the mid-1970s. I don't think the US was a police state then, so it can't really be said that any of these adjustments would make it into one now.

There is still room to argue about whether these statutory changes are appropriate from a policy point of view. I'm not familiar enough with either bill to really comment on that. But that would be a more sensible, and less hysterical debate.

OK, I just wasted minutes when I should have been reading something important, like Administrative law.

[tie]

Originally posted by petehammer:
I thought you had gone away for a while, according to your post somewhere else.

What happenend?

No, he was on "sabbatical" from MacNN. (Not to make fun of Simey, but that still makes me laugh!)

[Troll]

Originally posted by SimeyTheLimey:
So, what Patriot I or II can adjust has nothing to do with the Constution. Congress can't change that and nothing Congress wants to do goes anywhere near the actual constitutional boundaries. It's also worth bearing in mind that most of these additional statutory protections that everyone seems to wrongly assume are constitutional, only date to around the mid-1970s. I don't think the US was a police state then, so it can't really be said that any of these adjustments would make it into one now.

I think you've touched on the main issue here. The Patriot Act takes away something that US citizens had before its enactment. Human rights activists work for years to put in place minimum protections. Small changes are considered massive developments in civil liberties and when they're undone people get mad. People are never happy to know that a government is taking away their freedoms and it doesn't help to say, "It's not that bad, thirty years ago no one had these freedoms anyway."

The question as to whether what has been removed was a constitutional right or whether the Constitution is implicated is an academic argument which you are better qualified to make than I. I would note however, that the criticism of the Patriot Act makes many references to the Constitution and it seems to me that the effect of the Patriot Act is to limit rights that were acquired with reference to the Constitution. Furthermore, the ACLU's legal case is premised on provisions of the Constitution. I would think therefore that the Patriot Act does have something to do with the Constitution. According to the ACLU, the Patriot Act:

* expands the government's ability to look at records on an individual's activity being held by a third parties. (Section 215)

* expands the government's ability to search private property without notice to the owner. (Section 213)

* expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).

* expands another Fourth Amendment exception for spying that collects "addressing" information about the origin and destination of communications, as opposed to the content (Section 214).

The expansion of exceptions to the 4th Amendment seems to me to have the effect of further limiting the 4th Amendment right. Seems to me that the decision as to whether that limitation of the right is justified is a Constitutional issue. This illustrates for me one of the problems with the US Constitution; that it doesn't provide clear guidelines as to how the rights specified therein can be limited. The Constitution, in my opinion, leaves too much to the courts to decide and doesn't create a firm base of principles that guide that interpretation. But that aside, if I were living in the US right now (and moving over there is a distinct possibility in the near future), I'd be concerned that the state has seen fit to limit my rights further. I'd be particularly upset given the way the Patriot Act is being implemented.

[SimeyTheLimey]

Originally posted by Troll:
I think you've touched on the main issue here. The Patriot Act takes away something that US citizens had before its enactment. Human rights activists work for years to put in place minimum protections. Small changes are considered massive developments in civil liberties and when they're undone people get mad. People are never happy to know that a government is taking away their freedoms and it doesn't help to say, "It's not that bad, thirty years ago no one had these freedoms anyway."

The question as to whether what has been removed was a constitutional right or whether the Constitution is implicated is an academic argument which you are better qualified to make than I. I would note however, that the criticism of the Patriot Act makes many references to the Constitution and it seems to me that the effect of the Patriot Act is to limit rights that were acquired with reference to the Constitution. Furthermore, the ACLU's legal case is premised on provisions of the Constitution. I would think therefore that the Patriot Act does have something to do with the Constitution. According to the ACLU, the Patriot Act:

* expands the government's ability to look at records on an individual's activity being held by a third parties. (Section 215)

* expands the government's ability to search private property without notice to the owner. (Section 213)

* expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).

* expands another Fourth Amendment exception for spying that collects "addressing" information about the origin and destination of communications, as opposed to the content (Section 214).

The expansion of exceptions to the 4th Amendment seems to me to have the effect of further limiting the 4th Amendment right. Seems to me that the decision as to whether that limitation of the right is justified is a Constitutional issue. This illustrates for me one of the problems with the US Constitution; that it doesn't provide clear guidelines as to how the rights specified therein can be limited. The Constitution, in my opinion, leaves too much to the courts to decide and doesn't create a firm base of principles that guide that interpretation. But that aside, if I were living in the US right now (and moving over there is a distinct possibility in the near future), I'd be concerned that the state has seen fit to limit my rights further. I'd be particularly upset given the way the Patriot Act is being implemented.

Well, no matter what the ACLU says, the Patriot Act does not pare back constitutional rights. But it does adjust statutory protections and procedures.

I say "adjust" because I don't think in all cases it truly can be said that it reduces them. For example, Patriot I removed a wall of separation between the CIA and the FBI. It was put in place in the 1970s by statute, and then greatly increased by Attorney General Reno by internal DOJ policy to the point where in practice the CIA and FBI could not exchange information. The intent was arguably civil liberties, but the practical effect was that two agencies that are supposed to be looking out for the public good couldn't function to prevent terrorist attacks. In part we paid for that on 9/11. The CIA was tracking some of the hijackers but couldn't hand them off to the FBI when they entered the country. 3000 people and their families had their civil liberties infringed as a result.

Law enforcement and civil liberties are always in tension, and it is always a balancing act. If it wasn't, we would just say that the government can't search at all. But that isn't what we do. The 4th Amendment allows "reasonable" searches and seizures. What is reasonable requires looking at the governmental interest. Take the warrant procedures under the FISA, (passed in, I think, 1979). The procedures were appropriate for the Cold War, but they didn't take terrorism into account. The idea was that there would be a special warrant process to track spies. But spies of that era didn't blow up buildings. What Patriot does is recognize the significant difference between circumstances of the 1970s and now.

But here is something that is important: The wording you use above from the ACLU about the FSIA is wrong. An FISA warrant isn't an exception to the 4th Amendment. It is just a different procedure under (and actually, beyond) the 4th Amendment. The 4th Amendment itself doesn't say anything about procedure. It just says that a judge or magistrate must issue warrants upon showing of probable cause. But which judge or magistrate? That's for Congress because Congress creates the offices of all the inferior Article III judges and magistrates and decides their jurisdiction. So again, what we are talking about is statutory law, not constitutional law. Congress cannot "expand narrow exceptions to the Fourth Amendment." It simply doesn't have the power. But it can adjust statutory procedures that go beyond those mandated by the Constitution. Readjusting those certainly does upset people, but there is no reason for the ACLU and others to misrepresent what is actually happening. All they are doing by that is confusing things and scaring people. That isn't the way to have an intelligent public policy debate.

By the way, this also has nothing to do with human rights. We are talking about procedures beyond those mandated by the Constitution, which itself greatly exceeds the minimums that human rights deals with. It confuses things to muddle those distinctions up. Separate issues should be kept separate.

[Troll]

Originally posted by SimeyTheLimey:
Well, no matter what the ACLU says, the Patriot Act does not pare back constitutional rights. But it does adjust statutory protections and procedures.

I'm not sure I understand your anaylsis ... which is not to say that you're wrong.

To be clear, you're saying that the Constitution creates a minimum right, namely:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

My understanding (and again I'm not an expert on US law but looked at this in a comparative con law class only) is that under statute (something like the Safe Streets Act in the late 60's), a phone wiretap could be obtained with probable cause only for a list of specific alleged crimes with warrants valid for only 30 days, and with the government required to report back to the court. I thought that was held to be a reasonable limitation of the 4th Amendment. Then, in the late 70's, the requirements for a wiretap were watered down further. FISA said that the FBI didn't need probable cause or even reasonable suspicion to install a wiretap but only in foreign intelligence cases (ones involving spies). They only had to certify to a judge that information gleaned from such the tap would be relevant to an ongoing criminal investigation. That was my understanding of what the law was before the Patriot Act; only in cases of foreign spies could the probable cause requirement be dropped.

My understanding is that section 214 of the Patriot Act applies the FISA standard not only to cases of foreign spies but to basically any criminal investigation that the state tells a judge is relevant to combatting terrorism. The state merely has to certify that the information obtained would be "relevant to an ongoing investigation" in order to install a wiretap. The judge has no discretion to look into the allegation. That is, there is no longer a probable-cause requirement in any case that the state, without any independent review, says is one involving "international terrorism" (I would be interested to know how this is defined). That's a pretty major limitation on the 4th Amendment right. I mean all the state has to do to deny me the right is allege that the information they will get could be relevant to a terrorism investigation.

As you say, the argument is precisely whether this is an unreasonable restriction on the 4th Amendment right? If the PA creates unreasonable search and seizure provisions then it has pared back Constitutional rights. Your saying that it doesn't pare back rights is based on your having made an assessment of what challenges the US faces and what the reasonable response should be. But are you, or Congress competent to make that decision. I don't think it's correct to say that that argument is resolved on the basis of "governmental interest." It is ultimately resolved by a court balancing the interests of the state vs. the constitutional protections afforded the individual. It may be that the modern world requires us to change what we think is reasonable and accept greater limitations on the 4th Amendment right as a result, but at the end of the day, this seems to me to be as clear a Constitutional issue as any. Until a court pronounces on the issue as to whether the limitation is reasonable, it seems to me that people could well say that having the probable cause requirement removed in any case that the state wants it removed is an affront to their constitutional rights.

[voodoo]

Originally posted by MrX edited by voodoo:
The ACLU is wrong, the Patriot Act does not reduce constitutional rights.

It changes those rights. For example, Patriot I removed a wall of separation between the CIA and the FBI. The intent was civil liberties.

Law enforcement and civil liberties is a balancing act. The 4th Amendment allows "reasonable" searches and seizures. What Patriot does is balance these liberties to fit the times.

ACLU is wrong again. A FISA warrant isn't an exception to the 4th Amendment. It is just a different procedure under the 4th Amendment. Congress cannot "expand narrow exceptions to the Fourth Amendment." It simply doesn't have the power.

By the way, this also has nothing to do with human rights. We are talking about law that isn't mandated by the Constitution, which itself greatly exceeds the minimums that human rights deals with.

When this hotair balloon has been deflated..

[SimeyTheLimey]

Originally posted by Troll:
I'm not sure I understand your anaylsis ... which is not to say that you're wrong.

To be clear, you're saying that the Constitution creates a minimum right, namely:
My understanding (and again I'm not an expert on US law but looked at this in a comparative con law class only) is that under statute (something like the Safe Streets Act in the late 60's), a phone wiretap could be obtained with probable cause only for a list of specific alleged crimes with warrants valid for only 30 days, and with the government required to report back to the court. I thought that was held to be a reasonable limitation of the 4th Amendment. Then, in the late 70's, the requirements for a wiretap were watered down further. FISA said that the FBI didn't need probable cause or even reasonable suspicion to install a wiretap but only in foreign intelligence cases (ones involving spies). They only had to certify to a judge that information gleaned from such the tap would be relevant to an ongoing criminal investigation. That was my understanding of what the law was before the Patriot Act; only in cases of foreign spies could the probable cause requirement be dropped.

My understanding is that section 214 of the Patriot Act applies the FISA standard not only to cases of foreign spies but to basically any criminal investigation that the state tells a judge is relevant to combatting terrorism. The state merely has to certify that the information obtained would be "relevant to an ongoing investigation" in order to install a wiretap. The judge has no discretion to look into the allegation. That is, there is no longer a probable-cause requirement in any case that the state, without any independent review, says is one involving "international terrorism" (I would be interested to know how this is defined). That's a pretty major limitation on the 4th Amendment right. I mean all the state has to do to deny me the right is allege that the information they will get could be relevant to a terrorism investigation.

As you say, the argument is precisely whether this is an unreasonable restriction on the 4th Amendment right? If the PA creates unreasonable search and seizure provisions then it has pared back Constitutional rights. Your saying that it doesn't pare back rights is based on your having made an assessment of what challenges the US faces and what the reasonable response should be. But are you, or Congress competent to make that decision. I don't think it's correct to say that that argument is resolved on the basis of "governmental interest." It is ultimately resolved by a court balancing the interests of the state vs. the constitutional protections afforded the individual. It may be that the modern world requires us to change what we think is reasonable and accept greater limitations on the 4th Amendment right as a result, but at the end of the day, this seems to me to be as clear a Constitutional issue as any. Until a court pronounces on the issue as to whether the limitation is reasonable, it seems to me that people could well say that having the probable cause requirement removed in any case that the state wants it removed is an affront to their constitutional rights.

I'm going to have to keep this fairly simple because I don't have my Crim law materials in front of me to cite the cases. I am quibbling with your statement that this is narrowing the 4th Amendment. That isn't within Congress' power. What Congress can do it create laws that grant more rights than are granted under the Constitution. But those rights never become organic parts of the Constitution. That is why I say that adjusting statutory procedures is not an erosion of Constitutional rights. The one is nested deeply within the other. You can remove some outer statutory layers without getting anywhere near the inner constitutional layers.

Ignore the statutes for a moment. The basic analysis under the 4th Amendment purely as a constitutional matter is whether there has been a search, and whether there has been a seizure. If you pass that hurdle then you get a second step of whether they are reasonable or not. Back to the first step, all kinds of things that you and I would think of as searches and seizures aren't defined as such for the purposes of the 4th Amendment. For example, a policeman looking through a window isn't a search (unless he is standing where he shouldn't be such as in the building's curtilege). It also could be a search if he used a flashlight to illuminate the interior. The constitutional law here is kind of tricky and incoherent because it is all created by common law.

To cut a long story short, wiretaps were defined by the Supreme Court so narrowly that the police could do them without triggering the search and seizure provision. Congress didn't like that so it stepped in and created set of statutory procedures that are considerably more protective than the Constitution.

The FSIA is part of this. Most warrants are issued by regular local magistrates. The FSIA effectively creates a parallel warrant application procedure for national security situations. Basically, Congress was worried about a series of abuses it uncovered in the COINTELPRO scandal of the 1960s - 1970. Principally, mail intercepts and wiretapping of anti-Vietnam War groups. Congress wanted to create a mechanism to issue warrants in sensitive counterespionage investigations that wouldn't go to regular magistrates who wouldn't have the clearances necessary. But again, this is not constitutionally mandated. These kinds of "searches" don't require a warrant as a constitutional matter. All this is just a structure enacted by statute to require what the Constitution does not require. What Congress enacts, it can repeal. Or in this case, amend.

On the Constitutional issues, by the way, there are far more worrying developements than the Patriot Act. A few years ago, the Supreme Court decided a case called United States v. Leon. Leon said that warrants that are issued on inadequate probable cause can still be relied on in good faith by the police, and that once relied on, the evidence obtained as a result of a insufficiently supported warrant wouldn't be excluded. Other cases have significantly reduced the amount of evidence the police have to show to constitute probable cause. The upshot is that the warrant requirement has been reduced to a virtual nullity. That is something that completely swallows this issue. If a warrant is a mere formality that is easy to get and hard to challenge, then the whole purpose of the warrant requirement is undermined. That's what I am worried about.

[Troll]

Originally posted by SimeyTheLimey:
Snip

This kind of argument is precisely why I don't like the US Constitution. If you are correct in saying that the 4th amendment right does not cover telephone calls because listening in on one's telephone call is not considered search and seizure, then that seems to me an abomination. I would have thought that the principles that underlie the Constitution recognise that phone calls are of the same nature as "papers and effects." I mean, if they lived today, would the drafters really distinguish between letters (protected) and phone calls (not protected)? If you aren't going to regularly update the Constitution to keep it current, then I would think that the only alternative is to interpret it broadly. If you interpret it restrictively by, for example saying that it doesn't cover telephone calls, then the fact that it didn't anticipate most of the things that exist in our modern world makes it a pretty useless document.

I must say, my understanding in this area was that tapping phone calls was indeed always considered search and seizure. I thought that the legislation was there to limit the 4th amendment right and that specific legislation was required to ensure that those limitations remained reasonable. I always understood that the requirements were designed not to extend the 4th amendment protection to telephones (an area which it didn't apply to previously), but to basically define "reasonable" in the context of a limitation of the 4th amendment right - i.e. to carve out a specific area where the requirements of the 4th amendment could be relaxed. That is what I understood the ACLU to be referring to when they used the word "exception."

[SimeyTheLimey]

Originally posted by Troll:
This kind of argument is precisely why I don't like the US Constitution.

I'm not trying to argue anything. I'm just doing my best to explain something that is actually rather complex.

The one thing I am arguing against is the use of sloppy arguments such as the ones you say the ACLU has been using. What upsets me is that groups like the ACLU are full of people who know the difference between what the constitution requires and what is only statutory law perfectly well. This is stuff taught every lawyer and every cop. They make the statements they do because it sounds more alarming to claim that constitutional rights are at stake when in fact, they are not.

[Troll]

Originally posted by SimeyTheLimey:
They make the statements they do because it sounds more alarming to claim that constitutional rights are at stake when in fact, they are not.

I'm not sure why you say constitutional rights are not at stake. Because Americans never had a right not to have their phonecalls tapped therefore if their calls are tapped, the haven't lost any right? Is that what you're saying?

[SimeyTheLimey]

Originally posted by Troll:
I'm not sure why you say constitutional rights are not at stake. Because Americans never had a right not to have their phonecalls tapped therefore if their calls are tapped, the haven't lost any right? Is that what you're saying?

Not that they haven't lost "any right." rather, they haven't lost any constitutional right.

It's also not a question of having your telephone tapped or not. It is just a question of how much procedure there is before a warrant is issued. There is still a statutory warrant procedure, even after Patriot. It's slightly relaxed in some situtations, but only slightly.

The reason it is important to keep this all straight is because it is easy to raise anxiety levels if people use incendiary phrases that aren't accurate. Saying that "the Constitution is being violated" is a long way from saying that a "statute has been amended." Once sounds lawless (which it would be, if true), while the other sounds lawful (which it is). Either way, you can still debate the issue from a policy point of view. I think that there is a real issue here that people should debate. It's just that being accurate and non-hyperbolic makes it more likely that people will actually discuss the issue rationally instead of just flying off the handle.

[voodoo]

Originally posted by SimeyTheLimey:
I'm not trying to argue anything. I'm just doing my best to explain something that is actually rather complex.

A typical answer of a besserwisser that DOESN'T KNOW THE ANSWER HIMSELF.

We've all met one

Little Timmy:
"Why is the sky blue Mr. Besserwisser?

Mr. Besserwisser:
"Why little Timmy it is because blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blah blah blah bleh blahblah blah bleh blah blah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blah ... and then people agreed mostly that it was azure, mind you (not really as blue as we think of it). The Babylonians blah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blah and then I imagine the sunrays could find their way in such a way that they no longer are primarily white blah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blahblah blah bleh blah and in doing so they are in fact quite blue although some people might wrongly think otherwise on that particular issue."

Little Timmy:
"Are you saying the sky is blue because of early misunderstanding of the color by the Babylonians if you are talking about the 'word' blue but if you are talking about the actual electromagnetic wavelengths it is because the blue spectrum goes better with the sky?"

Mr. Besserwisser:
"I'm not trying to argue anything. I'm just doing my best to explain something that is actually rather complex."

[SimeyTheLimey]

Originally posted by voodoo:
A typical answer of a besserwisser that DOESN'T KNOW THE ANSWER HIMSELF.

This is just being offensive for the hell of it. I know what I am talking about here because I took an exam in the subject less than a year ago. Have you?

No.

Then shut up. Go eat a herring.

[voodoo]

Originally posted by SimeyTheLimey:
This is just being offensive for the hell of it. I know what I am talking about here because I took an exam in the subject less than a year ago. Have you?

No.

Then shut up. Go eat a herring.

I wasn't being offensive. You are projecting

[Troll]

Originally posted by SimeyTheLimey:
Not that they haven't lost "any right." rather, they haven't lost any constitutional right.

It's also not a question of having your telephone tapped or not. It is just a question of how much procedure there is before a warrant is issued. There is still a statutory warrant procedure, even after Patriot. It's slightly relaxed in some situtations, but only slightly.

The reason it is important to keep this all straight is because it is easy to raise anxiety levels if people use incendiary phrases that aren't accurate. Saying that "the Constitution is being violated" is a long way from saying that a "statute has been amended." Once sounds lawless (which it would be, if true), while the other sounds lawful (which it is). Either way, you can still debate the issue from a policy point of view. I think that there is a real issue here that people should debate. It's just that being accurate and non-hyperbolic makes it more likely that people will actually discuss the issue rationally instead of just flying off the handle.

It still doesn't make sense to me. I thought the constitutional right bit was implicit in my last post, but just to be clear:

1) Are you saying that no constititional right is being infringed because Americans never had a constitutional right not to have their phones tapped?

Or

2) Are you saying that the Patriot Act is a reasonable limitation on the constitutional right which Americans do have not to have their phones tapped? In that case, are you competent to make that determination or is this really an issue of Constitutional interpretation that needs to be dealt with by the courts. In which case (to take it even further), is the ACLU not as entitled as you are to interpret the Patriot Act the other way even if that disturbs the animals ... I mean citizens.