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Journal neocon's Journal: Freedom and FUD: a Challenge 27

Journal by neocon
So, inevitably, in an effort to distract people from the fact that we are still at war with an enemy which is still trying to kill us, the `our liberties are under attack!' crowd has come out of the woodwork again.

In today's thread taken from a Reuters article (you remember Reuters -- the news service that as a matter of policy does not refer to Mohammad Atta and company as `terrorists', because, you know, they might just be `freedom fighters', and which calls Hamas suicide bomb-makers `activists') lots of slashdot kids lined up to shout `yes! my liberties are being taken away!', but are they?

Well, I don't think so. I would argue that in fact this nation has done a tremendous job of safeguarding liberties while attempting to defend ourselves against future attacks, and if anything has erred against defense, not against liberty, curtailing actions that in no way infringed on liberty in the name of political correctness or to placate groups like the ACLU or CAIR.

So, I'd like to make a simple challenge: I challenge those who claim that they have lost liberties in the wake of September 11 to point to even a single right which they believe they had on September 10, 2001, but do not have now (or that they had on January 20, 2001, but do not have now, for those who claim that the Bush administration has taken away their liberties).

I contend that there is not even a single example of such a right, because the American system has done what it does best in this crisis -- preserved the liberty of its citizens.

Let the discussion begin!

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Freedom and FUD: a Challenge More

Freedom and FUD: a Challenge

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  • The only thing that really comes to mind is that it's more difficult to travel. But I haven't seen anything that's an actual infrigement of the right to travel, so that really doesn't count.

    I know they're doing a lot more wiretapping, and that bothers me a bit, but on the whole I think we kind of have to give them some leeway -- they always did it, I think they're just doing it legally now.

    Side note -- I linked to one of your journal entries earlier in this comment [slashdot.org] which is generating some discussion. Hope you don't mind...

    • Side note -- I linked to one of your journal entries earlier in this comment [slashdot.org] which is generating some discussion. Hope you don't mind...

      Not at all -- glad of all links, especially if it can help clear up some of the FUD flying about in cases like that of Mr. al-Muhajir.

      • It's amazing to me how many people can't see it -- I haven't had a single positive response to that thread, vs about 15 negatives, which run the gamut from complete trolls to people misguidedly trying to actually argue the point...
  • Heck, this could be a pretty good web site. Offer money to anyone who can show they've lost a right since 9/11. Before they can file a claim, however, they've got to give you money. Let's see some of these Islamofascist apologists put their money where their overly large mouths are.

    -jon

  • 1) The right to conduct eyebrow maintenance in an airplane restroom.

    2) The right to use the restroom in a dignified manner before landing at Reagan National.

    Most lost rights have to do with travel, particularly air travel.

    Rights are things that are legislated away, whether through actual passage of laws or the changing of rules by government-led organizations. IOW, when the FAA makes a new rule, it may as well be a new law because you can be held accountable for breaking the rule. Anything that is not prohibited by a law or a rule is a right. You have the right to travel on the airlines, for example. You used to have the right to do those couple things I mentioned above, but now you don't have those rights. They have been taken away.

    Granted, the basic rights that we share as citizens, those rights that are universally accepted because they are written down in the Constitution have not been usurped. Freedom of Speech is still here. Freedom of the Press is still here. Freedom of Association is still here. It's not those rights that are being taken away. It's the little things like carrying tweezers or taking bathroom breaks on airplanes that are being eroded.

    Maybe you can say that losing those little things are necessary for securing our safety and thus ultimately our freedom, but these Band-aids have little to do with terrorism and increase the inconvenience to citizens unnecessarily.

    Of all the people who understand this, neocon, I would have assumed that you would.
    • The problem I have with this argument is that it presumes that airlines, which are businesses, do not have the right to place conditions on their service. This type of claim, for example, came to a head a month after September 11 when a Green Party USA activist in maine refused to allow her bag to be put through the scanner before boarding her flight, and then claimed that her rights were being violated when she was not allowed on the plane.

      Now, you and I may disagree with many of the security `improvements' being put through at the airports. It certainly seems clear that a lot of misguided thinking has gone into some of the new rules, while measures that actually would improve security, such as, oh, I don't know, paying closer attention to travellers from the same nations which the September 11 hijackers came from, are rejected on grounds having more to do with political correctness than with civil liberties or security considerations.

      But this is different from claiming that you have a `right' to get on an airplane without meeting the requirements set by the airline. You don't, any more than you have a `right' to be served at McDonald's if you are not wearing a shirt or shoes, or a `right' to move into an apartment without paying a security deposit.

      • It isn't the commercial airlines who have set the rule that pointy objects are prohibited past security checkpoints. And it isn't airline employees searching and confiscating them (anymore).

        The Constitution provides for protection from unreasonable search and seizure. Going to the airport and attempting to board a plane is grounds for reasonable search and seizure. It is expected and it should not be except in extreme circumstances physically intrusive. i.e. Your bags and shoes and pockets are fair game. However, it is not reasonable to expect that fingernail clippers, tweezers, pencils, baby-sized silverware, and the like would be seized. No reasonable argument can be made that these things are dangerous.

        If the government really wanted to protect flyers, they would install armed personnel on all flights and let the eyebrow tweezers and the nervous bladder sufferers fly in peace.
        • The Consitution does give you an absolute right not to be searched without judicial review, but it does not guarantee you the right to receive all services offered by private businesses without submitting to the requirements set by those businesses -- including requirements mandated by those businesses.

          This is no different from the fact that you have a first ammendment right not to wear a shirt, should you wish not to, but you do not have a constitutional right to be served at McDonald's without a shirt on.

  • The 4th Amendment:
    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.

    I pick section 218 of the PATRIOT Act, which I believe violates the 4th amendment.

    The Language
    The language in section 218 is minimal -- it changes the FISA wiretap provisions of 1978. According to FISA, surveillance is permitted for "the purpose" (in quotes, because this is what changed) of gathering foreign intelligence information. The PATRIOT Act changed this language to "a significant purpose".

    The Implications
    The change in wording provides a new loophole for criminal investigations, for which surveillance can take place without a warrant or true probable cause. This is important because we aren't talking public-place surveillance -- it's wiretap, carnivore surveillance for criminal investigations. The only they need to do is to simultaneously have a foreign intelligence purpose.

    Cut to the chase: if a person has a heritage of a countrythe US doesn't like (whether a citizen or not) under the PATRIOT Act the government has the right to wiretap and perform surveillance, AND arrest said person for any illegal activities.

    Thus, anyone deemed worthy of 'foreign intelligence surveillance' has lost their right to be presented with a warrant and reason of probable cause for a criminal investigation. Q.E.D.

    References:
    Center for Consitutional Rights [ccr-ny.org]
    Text of the passed PATRIOT Act [politechbot.com]
    Overview of FISA 1978 [muskingum.edu]

    • The problem with this analysis is that the USA PATRIOT act only discusses the situations in which the executive will request authority to perform a search or seizure. While FISA set some guidelines (oft ignored) for what requests should be made, the authority for determining whether a search is `reasonable' rests now, as it did before USA PATRIOT, solely with the judicial branch.

      No language in USA PATRIOT changes this (nor could it, as this is specified by the fourth ammendment). You still have the right to a judicial review of any search performed on your `person' or `property', just as you did before USA PATRIOT -- or before FISA.

      As for the `heritage' (I assume you mean nation of origin) of suspects, are you seriously asserting that this could not be considered before? Remember, of nineteen September 11 hijackers, nineteen were Muslim males from Arab nations. Not eleven of nineteen, not seventeen of nineteen, nineteen of nineteen. Are you seriously suggesting that we would not consider this in an investigation, or that anything in the Constitution says we should not?

      • The problem with this analysis is that the USA PATRIOT act only discusses the situations in which the executive will request authority to perform a search or seizure.

        No, I disagree. Wiretap and surveillance are considered search -- that's why FISA exists in the first place. FISA allows the FBI or any other government agency to legally search *without a warrant* for the purpose of foreign intelligence. No warrant = no judicial branch involved.

        What the PATRIOT Act has added is that this search can now include surveillance for criminal purposes, again without a warrant. Thus, a criminal search can be executed in tandem with foreign surveillance search without the need for a warrant. This contradicts the 4th.

        In addition, I chose the word heritage specifically because I *didn't* want to say nation of origin -- I was specifically talking about Americans, because this also runs into the equal protection clause of the 14th amendment, which can be interpreted that racial profiling of citizens is a no-no.

        • I don't agree with this analysis at all, for two reasons.

          First, of course, there is the fact that FISA wiretaps are still subject to judicial review, as with any other wiretaps -- so while USA PATRIOT may affect which court decides on the validity of a wiretap (by changing the previous voluntary rules of how wiretaps are applied for), it in no way changes whether they are subject to court review.

          Secondly, and more importantly, USA PATRIOT in no way changes the evidentiary rules established by the Supreme Court. Just as the only thing stopping law enforcement from using illegal wiretaps before USA PATRIOT was the fact that such wiretaps would be completely inadmissable as evidence (and, if shown to be the reason for an arrest, would result in the whole case being thrown out), the government is still subject to inadmissability (and possible dropping of charges) if the judge in a criminal case is not convinced that the evidence in question was gathered `substantially' for FISA-approved purposes.

          The truth is , as I said before, that this comprises no change in the legal state of affairs. Before, intelligence services voluntarily (and irresponsibly, as the attacks of 9/11 showed us) did not share information with law enforcement, but no law prevented such sharing, and you had no legal right not to have such information shared.

          So, you have no fewer legal protections than you had a year and two days ago. You had the right to judicial review of wiretaps, backed by the power to not admit evidence then, and you have it now.

          • No, I completely agree with the points of the court reviews. That hasn't changed. But the 4th also covers the process before -- including the need for probable cause.

            This is the core of the problem. Prior to the Act, a criminal investigation required probable cause. Now it does not, so long as it is in tandem with foreign surveillance. No probably cause needed. No warrant needed. No need for the 4th amendment, as long as they call if foreign surveillance. Just because it's suspect to review doesn't make it ok.

            • Which is a change in voluntary policy, but not in legal practice -- the feds could always ask for such a warrant before, but voluntarily did not. Now, they do ask, as a matter of policy, a policy defined in USA PATRIOT, rather than in an executive order. The process from the point where they ask has not changed.

              Don't confuse ``the government is legally allowed to do X, but as a matter of policy does not'', with ``you have a right for the government not to do X''.

              • I disagree.

                Prior to PATRIOT, the feds MUST ask for a warrant to wiretap in criminal investigation [need for probable cause] -- now, the feds can execute said criminal investigation in tandem with foreign intelligence wiretapping, which, under FISA, does not need a warrant to execute, and therefore bypasses the probable cause.

                There is no legal confusion here -- prior to the PATRIOT, I had the right to not be criminally investigated without probable cause. It wasn't a case of policy.

                • On the contrary, FISA wiretaps are subject to the judicial overview of the FISA court, as we saw in said courts recent report on the issuance of such warrants during the later years of the last administration.

                  A second level of judicial review exists as well, in the form of rules of admissibility.

                  At both stages of review, the judge in question is interpreting the Fourth Ammendment in determining whether a wiretap is acceptable. If a wiretap was not acceptable before USA PATRIOT, it has not become acceptable now.

                  It may be a different venue making the review, but the review is still made, and the same standard as to what is acceptable (namely the fourth ammendment) still applies.

                  • The FISA court is a private court (which means that the records are sealed and may not be available to even the person being prosecuted) which reviews wiretapping for foreign surveillance. The court does not have to find probable cause at the same level as a criminal investigation -- the language is written for foreign surveillance.

                    The PARTIOT act allows criminal investigations to take place without the need for a formal probable cause finding as dictated in the 4th. It can piggy back on the probably cause of the foreign surveillance (which means that you can now criminally investigate someone with ties to / from another country without criminal probable cause -- because that's a perfectly legitimate foreign intelligence cause)

                    It's not the same standard, it's not a review of criminal probable cause -- it's a review of foreign surveillance probable cause. Thus, back to the first point -- it's a loophole which allows criminal investigations to bypass probable cause, because the criminal aspect isn't a part of FISA.

                    p.s. I hate typing probable cause. It keeps coming out probably cause.

                    • Well, that's probably 'cause... oh, wait.

                      This is not strictly correct. Again, FISA, as with any law, can only define the parameters for a wiretap hearing. By definition, barring a constitutional ammendment, the final decision rests with a judge, and that judge interprets the fourth ammendment.

                      Now it is true that USA PATRIOT adds a few more types of cases in which that judgement may be made by a secret court, rather than an ordinary public court, but it does not initiate this practice (it does not even initiate the practice of using secret courts for this in criminal matters -- such has been done in RICO cases for years).

                      This is part of a more general question, which I've raised many times here: how can a law which only extends to organized terrorism practices which were already ruled to be constitutional when JFK and RFK employed them against organized crime forty years ago be accused of taking away rights? If you want us to conclude that adding `terroristm' to `domestic intelligence' and `organized crime' in the list of areas where these measures are legal, you'll have to explain why adding a category to an existing practice is a reduction in liberties?

                      More generally, you can still not be wiretapped without a judge's approval, and you still cannot be wiretapped `randomly', as the same rules of admissibility used to enforce probable cause apply to the question of whether a wiretap is indeed substantially related to a FISA investigation.

                      So again, I posit that there is nothing that you had a right to a year and two days ago that you do not have a right to now.

                    • Again, FISA, as with any law, can only define the parameters for a wiretap hearing.

                      Except FISA *has* an appointed court, which approves wiretapping for foreign surveillance purposes. I have the right for any criminal investigation to go through a proper criminal probable cause hearing. Under the PATRIOT Act language, it's quite possible that won't happen. Whether or not it ACTUALLY happens remains to be seen -- as most of that will likely not be admissible in court. But the lack of proper probable cause is the problem. I still believe my right has been taken away until the Supreme Court says otherwise.

                      In answer to the broader question -- I think the reason people are up in arms is because it's not possible to apply a law to "just the bad guys" -- the PATRIOT act *doesn't* extend to only organized terrorism practices, even if that was the spirit in which it was written. All citizens are subject to these provisions, and there's quite a few that are raising eyes. The point of the PATRIOT Act was to be able to get stuff through quickly, so that a suspected terrorist organization would be shut down before it did damage -- in theory that's all fine and good; what happens when the people they shut down weren't terrorists?

                    • No, USA PATRIOT does not apply only to organized terrorists any more than RICO applies only to organized criminals. It is inevitable that some innocents will sometimes be suspected of a crime or investigated for a crime, just as in any other criminal investigation.

                      It even happens that this is abused -- just ask Richard Jewell, or (I believe, based on presented evidence) Stephen Hatfill.

                      But as you already could have a sealed writ permit tapping of your phone or search of your home before USA PATRIOT, in the course of an organized crime or counter-espionage investigation, your rights have not changed in this area.

                      Now, if you want, we can argue about whether secret courts should ever be used -- I feel that they are needed in a number of cases (just look at the fact that bin Laden stopped using sattelite phones for communication because the evidence we got from tapping his conversations was introduced in an open court during the prosecutions for the 1993 World Trade Center bombing) -- but this is not a new practice, and thus not a right which has been lost since 9/11 -- or since 1970, when the RICO statutes passed, for that matter.

                    • Oddly enough...this very case is showing up in the news right now. :) There's an article [boston.com] at boston.com about the lower court wanting to throw out a request...and a split as to whether or not criminal investigations are allowed under the exapnded FISA...
                    • Notably, this review is one more stage than the FBI would go through to use secret-wiretap evidence from a RICO investigation in an unrelated criminal prosecution, so it sure looks like this confirms that no new capabilities are granted here.
                    • it sure looks like this confirms that no new capabilities are granted here

                      Quite the opposite, since the Justice Dept believes that it now has the power to conduct a criminal investigation under the expanded FISA and the FISA court doesn't. The review is the appeals court - if anything it confirms that there is a conflict in what the capabilities are.

                      The review is much more meta than one instance -- it's over whether or not the PATRIOT Act intended to expand the wiretapping capabilities under FISA to include criminal invesitgations. They are *arguing* over the language -- this isn't a standard review - this is an appeal to interpret the law. The Justice Dept. is claiming that the Act gives them the right to use FISA - the FISA court said no. Congress has requested a non-classified decision precisely because it *is* over new capabilities, and the outcome is important in shaping the intent of the PATRIOT.

                    • Exactly. So if the court rules that the Justice Department's interpretation is correct, then the Justice Department has the same power under FISA that they already had under RICO. If the court rules that the Justice Department's interpretation is too broad, then they have less power under FISA than they do under RICO. In neither case does USA PATRIOT grant them a capability which they did not already have, implicitly since at least 1962, and explicitly since 1970.
                    • And now we're arguing in circles, because in the parent post way back up there, I claimed that it was the *loophole* in the language which threatened the 4th due to the fact that surveillance could be passed for criminal investigation under foregin surveillance terms. They got new power not in what they could do, but how they could do it.
                    • It's not that I don't understand what you're arguing -- I disagree with it. Everything which you allege that they can `newly' do now under USA PATRIOT, they could already do under RICO. The sole difference is the substitution of the words `organized terrorism' for `organized crime' in the warrant application.

                      This comes back to what I said nearer the beginning of this thread -- no one has yet explained how a bill which only extends to organized terrorism measures which have already been deemed constitutional when used against organized crime can be accused of giving government new powers.

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