In Defense of the USA Patriot Act

Michael Moeller's picture
Submitted by Michael Moeller on Fri, 2012-08-17 03:13

It would take too much space in one blog post to cover all the falsehoods and allegedly controversial provisions of the USA Patriot Act, therefore I am going to include a summary of links to my thread posts dealing with each topic. I will update the summary as I proceed with each new post.

Primary Posts on the USA Patriot Act:

Myth #1 -- USA Patriot Act Was Passed Without Debate.

Myth #2 -- USA Patriot Act Permits Warrantless Searches.

Myth #3 -- The "Lone Wolf" Provision is Useless.

Myth #4 -- The USA Patriot Act Permits "General Warrants".

Myth #5 -- "Roving" Wiretaps are a New and Unconstitutional Expansion of Power.

Myth #6 -- Your Library Records Are Under Siege by the USA Patriot Act.

Myth #7 -- The Content of Your Conversations Can Be Monitoried Without a Warrant, and a Court Order for 3rd Party Business Records is Unconstitutional.

I also want to include two important references so that people can validate the facts:

The Text of the USA Patriot Act.

Congressional Research Service Report providing an overview on some of the controversial provisions and the related criminal procedure.


Win-Loss

i.am.dan.edge's picture

I started trying to write a Win-Loss analysis of US wars, but got stalled on determining what is a solid WIN. I talked to some smart friends about it, and got myself more confused. Need to think on it, I'll circle back around eventually. Thanks for the feedback all.

--Dan Edge

Doug

Michael Moeller's picture

Without turning this thread into another castigation of organized Objectivism, I do agree with you. Many of them are de facto cultural leftists, hence the obsessive focus on DOMA and abortion, almost to the exclusion of everything else. I've seen them downplay Obama's assault on America --on America as such -- yet declare Mitt Romney is equally statist because of issues like gay marriage and abortion (one, if not both of those, he supported at one time).

Then they stand on the sidelines as Obama sweeps to victory. Permanent (and lackluster) critics with no skin in the game.

But again, I don't much care to discuss the topic. These days, when I go to one of the websites, I just shake my head.

If Objectivism is going to become a force, it will be by individuals on thte outside of organized Objectivism achieving great things and becoming stars in their fields.

The mainstream listens to those who achieve, not to some no-talents posting podcasts on their websites.

Michael

Mainstream O'ism refusal to see the Left as it is

Doug Bandler's picture

His arguments against the Patriot Act mirror the left's. This is an even bigger problem.

Yes it is a big problem. This has been my central criticism of the Objectivist movement; i.e. that it is far too sympathetic with the Left. As has been pointed out, Objectivists are basically regurgitating Leftist arguments. The "Left-Libertarian" alliance is a good way to think of it as those two movement have so much in common. Objectivism is getting way too close to them in critical areas.

But this has been going on for a long time now. Indeed it was the basis for Lindsay's famous challenge to all the "Hsiehkovians"; i.e. Lindsay now famously rejecting Peikoff's '06 recommendation (intimidation) to vote Democrat across the board to stop the "imminent Christian Theocracy" or you "don't know anything about Objectivism".

The left has been systematically undermining the US laws of war ever since 9-11, most particularly against enemy detention, military tribunals, and foreign surveillance.

Mainstream Objectivists don't grasp this. They are constitutionally incapable of understanding the true evil of the Left. From ARI to TOS to most Objectivist bloggers, you never see any deep recognition of the extent of the Left's destructiveness or of Islam's evil. (But you will see constant condemnation of those "hate immigrants" Conservatives.) The focus is always on the problems with Conservatism or Christianity. Craig Biddle in a recent podcast blamed America's refusal to deal with the "Islamist" threat on "too much faith" from Americans. Is he out of his fucking mind? The reason we are not dealing with the "Islamist threat" is the Left's ideological and cultural dominance and their refusal to let Islam ever be challenged. Fuck, British Leftists just banned Robert Spencer from entering the country for an anti-Jihad event. Was that due to too much faith Mr. Biddle? Can we blame that on Christianity?

But I have to stop now because I am starting to curse. That means my blood is boiling. Sadly, Dan Edge is demonstrating that same mainstream Objectivist Left-leaning sympathy that makes me nauseous. What is causing this? Objectivists should have been leading the Islam-is-evil-and-the-left-is-even-worse charge. I'm dumbfounded. What a waste of Rand's philosophy and her fire.

Welcome to the new Objectivism the milquetoast edition, ARI certified.

Dan

Michael Moeller's picture

I am usually not concerned with organized Objectivism. I rarely follow what ARI, TAS, and associates are saying these days. Largely because I don't care much what they are saying.

Besides, I don't know of any Objectivists actually addressing some of the critical issues, like enemy detention and military tribunals. None of them addressed the Patriot Act until the recent NSA revelations. Where were they when these things were being proposed in Congress and during the raging debates in the years thereafter?

I only responded to Brook's statement because you posted it, and I thought it worthy of a response. His arguments in that video are pretty common -- among the left and libertarians.

As far as the "right answer", you will have to judge what I've said on this topic vs. people like Rand Paul, the ACLU, and others from the left-libertarian contingent. Also, I would say look at Andrew McCarthy for arguments from the other side. He's the best writer out there, in my opinion, on all things legal/constitutional when it comes to foreign policy.

Fire away with the questions.

Michael

Michael

i.am.dan.edge's picture

If you are home, welcome back from your vacation!

You have a gift for documentation. This post is a testament to that,; you have been a great help to me in finding truth.

-----

Your response on Brook was clever, but inefficient. If some of Brook's arguments are clearly false, why spend time disputing the obvious?

I do not care to know the details of how Brook and the Formal Objectivist Movement disagree with you on this topic. There is already too much focus on this. What is the right answer? Where can I research this for myself?

I have more questions for you, on these and other issues. I look forward to the exchange.

--Dan Edge

Dan

Michael Moeller's picture

I wasn't back from vacation (and still not quite back).

A military action "Authorized by Congress" is constitutional, but not by the UN. I was arguing about what was constitutional, not whether a particular instance was a success.

My point being that Yaron Brook starts off his analysis contrary to the facts. There was an official authorization by Congress against specifically named enemies against whom military force could be used, and the military action was continuously funded by Congress. Brook made it sound as if the only thing that happened was Bush declared a "War on Terror". Not true.

Then he went on about the "secrecy" of the foreign surveillance, and court orders pertaining to that surveillance. Well, no kidding! The US has done that forever -- and for good reason! This is national security information -- just like military tribunals -- and when it is publicly disclosed it quickly gets into the hands of the enemy. That's why it is not publicly disclosed, but instead monitored by Congress.

Does Brook want the evidence obtained by the government against foreign enemies -- eg. their ties in America, their cell phone numbers, their troop movements, who they are monitoring and where, etc etc -- to be a matter of public disclosure?!? Then why is he using this "secrecy" argument, which is old hat?

From listening to Brook's video, not only did he not exhibit familiarity with what the law actually says, he showed no grasp of why the law is that way, such as why foreign surveillance is held "secret", even though that should be obvious. I find this to be a problem. A BIG problem.

His arguments against the Patriot Act mirror the left's. This is an even bigger problem.

The left has been systematically undermining the US laws of war ever since 9-11, most particularly against enemy detention, military tribunals, and foreign surveillance. All of a sudden the standards are lowered and foreign enemy combatants are to be treated as civilian criminal defendants. This is a horrific notion. Meanwhile, Brook dresses himself up in a waiter's white outfit and serves up this legal coup on a silver platter. Blissfully unaware, apparently. Sad.

Furthermore, Brook has placed himself in quite the pickle. He has argued in the past for an aggressive war on Islamists. Well, he just took away one of the tools the government uses to find, capture, and/or kill these enemies.

What does he plan to use for foreign surveillance? X-ray googles?

Does he have an alternative proposal? I doubt it, since he demonstrated no familiarity with the current law.

I've been saying this for years, but organized Objectivism is going nowhere as long as the leading figures are content to make declarations from the philosophical armchair without bothering to get their hands dirty in the facts.

Michael

Go for it Dan

gregster's picture

if y'all think it would be helpful to the discussion.

I'll read it with interest.

Michael

i.am.dan.edge's picture

Rereading your last post, I see I haven't responded to many of the legal issues you raised (especially judicial approval of non-Formal declarations of War). I will try to engage more of that material in future responses.

Loss Analysis

i.am.dan.edge's picture

I would be interested in writing up a Win-Loss analysis document for all US wars, if y'all think it would be helpful to the discussion.

Welcome Back

i.am.dan.edge's picture

Michael

I still disagree with you, but I'm not sure why! I will research the links provided.

On first look: I note that wars described as "Formal" declarations of war were more successful, while "Military Engagement Authorized by Congress" and "Authorized by UN" were less successful. Eg., 4 of 5 "Formal" declarations were clear victories in my opinion (1812 being the exception). 6 of 12 "Military Engagements Authorized by Congress" were clear losses. 6 of 6 "Authorized by UN" conflicts were clear losses.

I will research further, but so far this finding supports my original conclusion: Formal Declaration of War is the most effective means of eliminating an enemy threat.

--Dan Edge

Dan

Michael Moeller's picture

Under the Constitution, the 2001 and 2002 AUMF are declarations of war.

First, President Bush's declaration of a "War on Terror" are how he framed the war, but are not a declaration of war. He is the Commander-in-Chief, but it is Congress who must authorize military action. I do not agree with how Bush defined the enemy (or the nation-building), but the official authorization against the named enemy came from Congress, not Bush.

Secondly, SCOTUS has held that two things are needed for a declaration of war: (1) authorization of military action by Congress, and (2) a funding of the military effort by Congress. As you can see from the Wikipedia link, this standard goes all the way back to the French Quasi-war (1798) and the two wars with the Barbary Pirates (1802 and 1815). Very few military actions by the US have actually used the words "declaration of war", including going back to the Founders.

And both of those elements are present in the current military actions. We have the 2001 AUMF (Taliban, Al-Qaeda and its coalition forces) and the 2002 AUMF (Iraq). The funding came from the successive National Defense Authorization Acts ("NDAA"), see 2011 example here.

In case there is any doubt about who the 2001 AUMF covers (i.e. "those responsible for 9-11"), the NDAA states the following are "covered persons" pursuant to 2001 AUMF:

"(b) COVERED PERSONS. -A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." (See pages 359-360.)

Ergo, when Yaron Brook states that the war was defined as a "War on Terror", he is simply wrong on the facts. President Bush couldn't use military force without authorization from Congress. He starts his analysis of the Patriot Act with a false premise.

Congress gave the authorization, and specifically named the those responsible for 9-11 (i.e. the Taliban, Al-Qaeda and its coalition forces), and Iraq. And Congress funded those actions; thus, the president received the two requisite Congressional actions for a constitutional use of military force.

In fact, a number of people, like Andrew McCarthy, argue that the authorization by Congress is too narrow, not too broad. Those named forces do not include other terrorist networks like the Haqqani network, or even arguably the Pakastani Taliban.

Michael

War on Terror

i.am.dan.edge's picture

Michael,

I agree with Brook that the US declared war on a tactic, not a nation.  I just read AUMF 2001 (it's short) and there's no mention of any specific country.  Instead, it targets "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."  Congress never declared war, and our President told us over and over again that this was a "War on Terror."

The Iraq Resolution was not a declaration of war, and threat to the US was not the primary justification for military action.  Eg., the Resolution referes to Hussein's brutality against his own people as a big part of its purpose.  Iraq ties to al Qaeda were very weak, and to my knowledge there was no direct evidence linking Iraq to 9/11.  After the resolution passed, our President told us over and over again that the aim of "Operation Iraqi Freedom" was to bring democracy to Iraqis.

The result of both Resolutions was a smarter, more theocratic, and better armed enemy in both Afghanistan and Iraq.  We lost two wars that were never even declared.  

This should be another thread, I'm just responding to a good mind.

--Dan Edge       

 

great summary of key Objectivist shortcoming

Doug Bandler's picture

He makes other errors, but this is what happens when Objectivists try to judge something exclusively from the philosophical armchair.

This power of this statement is enormous.

Dan

Michael Moeller's picture

Done. Thanks for the suggestions.

Note that Yaron Brook gets some essential facts wrong. He states that the war was directed against a tactic (i.e. terrorism), not against a nation-state.

But this is just plain wrong. The 2001 and 2002 AUMF's (Authorization for the Use of Military Force) authorizes force against al-Qaeda and its affiliates, and Iraq.

And this brings us to the second fact he gets wrong, i.e. the Patriot Act authorizes surveillance against all US citizens. It does not. It specifically says foreign agents (i.e. one of the groups named in the AUMF), or US citizens connected to one al-Qaeda or its affiliates.

He talks about the "secrecy" of the proceedings, but this is done for a very specific purpose. That is, the information involves national security information, which is why the information is not made public. It is well-documented that when this information is disclosed, it gets into the hands of the enemy rather quickly. I mean, once notified of the surveillance, a person could easily go to his foreign contacts and say: "Hey, the government is monitoring me via your cell phone". Then the foreign terrorist can simply get rid of the phone.

This happens even in military tribunals. One such instance was during a detainee trial where information was leaked on a contact to bin Laden (via the lawyer involved, most likely), and then that link to bin Laden immediately went dead.

Does Brook seriously suggest that the sensitive national security information during surveillance or military tribunals be the subject of public disclosure?!? It is Congress's job to monitor what the Executive branch is doing and to make sure it complies with the authority granted to him. That's the remedy. The remedy is NOT to make national security information publicly available.

He makes other errors, but this is what happens when Objectivists try to judge something exclusively from the philosophical armchair. He needs to get the facts straight, and to understand what the law actually says.

Whether he realizes it or not, he is using the same talking points as the ACLU!!

Feel free to quote me, or to link to my posts.

Michael

Robert

Michael Moeller's picture

Please go back and read my last post, as that outlines the problems I have with libertarians on this issue.

A few quick notes on your post, as I am off on vacation and won't return for awhile.

I fear you are lumping together all of the "alphabet agencies". Many are unconstitutional, and I would end them as such.

But the first step in the analysis is: is a particular agency constitutional? When it comes to foreign surveillance, the answer is: YES! I mean, it would be rather odd to construe the 4th Amendment to allow surveillance of civilian criminals, but not foreign enemies.

The second step in the analysis is: is the power granted to a particular agency by Congress constitutional? In the case of the Patriot Act: YES!

I don't think the Patriot Act extends the scope beyond ordinary criminal law. And there is a very good argument that Congress could do that when directed against foreign agents as the Framers gave broad discretion to the Executive branch in pursuing foreign enemies; and, up until the recent detainee cases, SCOTUS has generally stepped back from interfering with the Executive branch in issues of foreign policy/war because of the wide latitude granted by the Framers on this issue. Remember that Madison's remedy involved Congress (i.e. "the power of the purse), and their ability to defund foreign policy initiatives or to impeach the president. The Judicial branch generally did not have much say in the issue.

As far as subpoenaing 3rd party evidence goes -- like business records -- this was something recognized by the Framers. Not only did they use such subpoenas at the time, but Chief Justice Marshall issued a subpoena for President Jefferson to fork over his papers during the Burr treason trial.

My problem with Rand Paul and libertarians is that would so limit the ability to conduct surveillance that it would render any such power moot. They may say that want to get terrorists, but they leave the government with absolutely no means to get terrorists. Read Andrew McCarthy's article on Rand Paul's proposal (I gave the link in a previous post), and you will see that his proposal bears no resemblance to the 4th Amendment. This issue in regards to foreign terrorists is crucially important, as the US is dealing with enemies that operate as proxies of nation-states, if at all.

The last step of the analysis is: is the Executive acting within the constitutional powers granted to him by Congress?

I gather your argument is aimed at this issue, and I may agree with you depending on how the facts shake out. And I definitely agree that Congress needs to do their job and make sure the Administration is acting within the powers granted to him. If not, then Congress needs to seek remedy, preferably the latter one I mentioned supplied by Madison. Smiling

As to a special prosecutor, I generally don't like them for these scandals. The special prosecutor is appointed by the Executive branch, and there can be conflicts of interest. But more than that, once appointed, all the facts go underground while the prosecutor is doing his investigation.

I prefer for Congress to investigate and have all the facts open to the public. Instead of the investigation going underground with a special prosecutor, force the Administration officials to publicly appear before Congress and answer tough questions. We have already seen how effective this can be, eg. Holder is busted lying, and Lerner looks like a slimeball. If they refuse to answer questions, as in Lerner's case, then hold her in contempt of Congress and pursue the matter criminally.

Michael

Yaron Brook's recent comments on Patriot Act

i.am.dan.edge's picture

http://www.youtube.com/watch?v...

Yaron Brook here makes great arguments for a proper philosophy of war, but he also makes judgments of the Patriot Act that do not jive with the facts I've researched (guided by Michael's excellent analysis). I'm considering sending Brook a letter on this.

More on Topic Post Recommendation

i.am.dan.edge's picture

Michael,

In your Business Records response, it might be better to move the PRISM section (with argumentative close) after the Business Records section, since the latter more fully demonstrates the former. You had already provided enough information to justify the PRISM section earlier in the response, but I think it would flow better with PRISM + close at the end, since PRISM is the practical end point of the argument. Topic Post link title could be "Business Records and PRISM."

--Dan Edge

Michael,

Robert's picture

I will go back and read your reply more closely when I get a few consecutive uninterrupted moments. But I do want to say this. I'm not arguing that in our current State of War (for that's what it is) that the government doesn't have the constitutional right to implement security measures commensurate with defending the nation.

But (1) when they decide (as I believe Obama has) to rely on a passive offense (that is giving no offense to other nations who harbor terrorists on the assumption that they do so because America has wronged them) and an active defense (spying on everybody) then the government is setting up a situation where the emergency will never end. Thus they can justify the emergency measures for ever more. And whether they do it deliberately because they are evil commie bastards or whether they do it unconsciously because they are thumb-sucking infants and window-licking retards doesn't matter to me. The remedy is the same: you take the club away from them and don't hand it back until you have a properly comported adult available to do the job.

So yes, in theory, the Government of the USA is constitutionally allowed to have a Patriot act.

But (2), this isn't really the government the framers bequeathed to us is it? It isn't even the government of Ronald Reagan or even George Bush Jnr. Say what you want about Dubya, but the heads of his War/DHS departments are orders of magnitude more honest, moral and ethical than the current crop.

This government isn't of the people. Mostly it is of Ivy League academics; and only the most rabid Marxist variety too.

This government isn't for the people. The IRS, NSA, EPA and other scandals, wherein innocent law-abiding citizens are set upon by bureaucracies, demonstrates that point.

And lastly this government isn't by the people. The elected representatives in the House of Congress aren't doing their job!

They ought to be investigating each and every one of these scandals to the utmost of their ability and then making sure that punishment is meted out to law-breakers.

(1) The head of the one of the alphabet agencies committed perjury during a Congressional hearing. Why is he (a) not in jail or (b) looking for another job? The head of HHS - Katherine (Ob)Sequious - violated the Hatch act and is neither in jail nor looking for a job. Obama's Energy Czar threatened to assault a journalist (if I recall correctly) and suffered no consequences. Holder has been dodging calls for evidence on each and every one of the scandals he is involved with and its almost as if he's made of freaking Teflon. I could go on, but I have another point to make:

(2) If I recall correctly, a special prosecutor was appointed to investigate doping in MLB. Why hasn't a special prosecutor been appointed to look into Benghazi, Fast and Furious, IRS, NSA, and the other scandals? Because John Boner and the Rove-RHINO axis of political mediocrity are following a policy of appeasement with the White House and thereby are allowing them to do whatever the hell they want.

In this context then, the Patriot Act is no longer a shield for Americans. It is a rod for their backs. And until the electoral process flushes these morons out of office it will continue to be. And any protection that the Act might provide is being dispersed into nothing because Obama is selecting or encouraging ninnies to rise to leadership roles in the departments responsible for National defense and State-craft.

For instance:

(1) Samantha Power as the new UN ambassador!?! Ahmadinejad hates America less than that harpy.
(2) John Kerry as Secretary of State who, along with being a Museum-grade fool, also has no balls. He was kept waiting (reportedly) for hours in Moscow recently even though the meeting was scheduled. Tolerating that sort of 3-grade snub is just the sort of behavior you expect from the people's representative of the most powerful country on the planet - to a former (defeated) adversary in the Cold War.

(3) Why did no Generals/Admirals resign in protest over Benghazi or the fact that Marines in Afghanistan are no longer permitted 3 hot meals a day (sequester related budget issues)? Is their no honor anymore?

Remember: while Queen Michelle Obama stays in a $3,000/night room in another country (Eire) while her Husband conducts State (Pfft!) business in the other country in the region. And no doubt Air Force 1 and 2 were both deployed to support her Highness' trip to simultaneously "River Dance" live in order to avoid spending time in her husband's presence. Et cetera, et cetera, and ad nauseum.

Now I don't know whether thinking like this is a canonical Libertarian/Infowars stance. But it is the way thinking right now.

Michael

i.am.dan.edge's picture

A link to your excellent answer on Business Records would be a nice addition to the original post.

Michael

tvr's picture

Michael,

"If it is sought in a criminal investigation and held by a 3rd party, it is legitimate for the government to subpoena that property, assuming the subpoena is reasonable in scope and material to the crime."

I agree with you, provided that the subpoenaed information is limited in scope and is material to the crime. But there must be an actual crime being investigated, whether known or reasonably suspected. When surveillance changes from gathering evidence relating to a known or reasonably suspected crime, to gathering evidence for preventative purposes, that is where rights violations begin.

"But you don't just own the utility, you own the object. Any utility happens after exclusive possession of the object, as one first has to undertake possession before putting the object to use. Locke's acorn first has to be pulled from the tree, THEN the acorn can be put to use. Looking at it in terms of utility might justify ownership of the object even after the object has been transferred.""

This can be dealt with in a separate discussion at another time, but hold that if property is the product of a person's effort, including the application of their knowledge, then the 'product' is the utility in a thing – any thing - that is attributable to that effort, and not the thing itself (nor utility per se). Man does not create matter, only the form of matter, for a specific use[s]. Matter, in whatever form, is nature's gratuitous addition to utility, and so is not and should not be made the base of property. Effort is the base, and is immaterial in nature.

"My definition is essentially the same as Rand's, and I think it is great as far as a general definition goes.

I don't believe that Ayn Rand ever gave a formal definition for property. To the extent that she materialized property, I disagree with her. Material things can be said to be property only by metonymy.

Terry

McCarthy is case and point

Doug Bandler's picture

And that is why I prefer people like Andrew McCarthy, even over the vast majority of Objectivists, however subtle my disagreements with him on this issue. The guy is extremely educated on the facts and constitutional law, and his spine doesn't crack just because people are yelping about the "Surveillance State".

This is an example of what I keep saying: that a knowledgeable Conservative is almost always more valuable than the majority of Objectivist commentators. McCarthy is case and point. He's grounded in empirical reality not rationalist libertarian/Objectivist fantasy. Robert Spencer is another example of this when it comes to the subject of Islam. I began noticing this in 2005 and every year it becomes more and more apparent.

Robert

Michael Moeller's picture

Thank you. And I do agree with you.

I don't trust one word that comes out of Obama's mouth. Not one.

I mean, we are talking about a guy who was one of the most vociferous advocates against the Patriot Act, and now he is using it to collect metadata on everyone, even when the Act is aimed at foreign agents and US citizens engaged in terrorism. Does he have political designs on this data? Was this a very clever ruse to gather support for the repeal of the Patriot Act, which he wanted from the very beginning?

I can only speculate on that, but the bottom line is that Congress needs to do their job. Investigate, gather facts, and get answers from the Administration.

But here is the problem I have with the libertarians shrieking "Big Brother" and "Surveillance State": if they propose to repeal the Patriot Act, do we go back to previous standards? If not, what do they want to put up in its place?

Repealing the Patriot Act would set us back to intelligence gathering that was in absolute shambles. Just look at the facts/timeline of the Moussaoui case, which was an abomination and the result of overly restrictive rules.

It can be quite easily argued that had the Patriot Act's rules been in place, they would have gotten the information in-time and been able to stop the 9-11 plot. And what about the intelligence gathering yielding Osama bin Laden's courier and all the other successes?

Do the previous failures and new successes factor into the Libertarian calculus at all? I mean, is it not the least bit important to them that they could be unleashing more Moussaoui's on America, and getting less bin Laden's and al-Awlaki's?

So if the Patriot Act is repealed, then what do they propose to still get the terrorists while maintaining their notion of the 4th Amendment (which gets VERY scant legal/constitutional analysis)?

On those topics, all I hear is crickets. Lots and lots of crickets.

That's tough stuff and requires a lot of knowledge about the facts and the law, so they instead shriek about "Big Brother". Well, my message to them is: time to put up! Let's see what you have for a proposal!

We've seen Rand Paul's, and it is an absolute disgrace. I at least give him credit for putting something forward, even though the nimrod wouldn't recognize the 4th Amendment if it was tatooed on his face. Let's see the other Libertarians follow suit so people can analyze more than just their self-congratulations for being defenders of civil liberties.

They won't put up such a proposal, though, because it opens them up to scrutiny and people will realize that they are unleashing criminals and terrorists on society.

And that is why I prefer people like Andrew McCarthy, even over the vast majority of Objectivists, however subtle my disagreements with him on this issue. The guy is extremely educated on the facts and constitutional law, and his spine doesn't crack just because people are yelping about the "Surveillance State".

Instead, I get some Objectivist dope on Facebook declaring all of the Patriot Act is unconstitutional and "fascist" when he has no clue what is even in it, so he presses the eject button to avoid being challenged.

Well, they can keep shrieking loud enough, and they will probably get what they want. But I guarantee you they are not going to like what they get -- i.e. more Atta's and Moussaoui's. But you will not see them taking the blame for it. No sireeee.

Michael

Terry

Michael Moeller's picture

You wrote:

"I confess I did not read your prior posts on this thread thoroughly, and so apologize for your having to repeat yourself in places."

Ok, and I respect that you've taken up the debate.

You wrote:

"Based on what you have written in your last reply it seems we are in agreement on the fundamentals, except maybe for the definition of property, and whether there is a property interest held by first and second parties in any communication exchange where their details are disclosed to the third party carrier voluntarily and where an explicit or implicit undertaking to protect the privacy of that information exists between all the three parties."

But it matters against whom the information is being sought, and the purpose for which it is sought. If it is sought in a criminal investigation and held by a 3rd party, it is legitimate for the government to subpoena that property, assuming the subpoena is reasonable in scope and material to the crime.

You wrote:

"The product of one's own effort is certainly the genesis of property, and exclusivity of control makes that property owned, but I would say that the concept of "property" is broader than this and is best defined as: any new utility introduced to a thing on account of one's own effort so long as the introduction does not take away from another person's existing property (unless consent is first obtained), and/or any utility that is contained in a thing and acquired by voluntary exchange."

But you don't just own the utility, you own the object. Any utility happens after exclusive possession of the object, as one first has to undertake possession before putting the object to use. Locke's acorn first has to be pulled from the tree, THEN the acorn can be put to use. Looking at it in terms of utility might justify ownership of the object even after the object has been transferred.

My definition is essentially the same as Rand's, and I think it is great as far as a general definition goes.

As far as the purpose of this thread, I don't really want to get into a general discussion of property. If you have a distinction from mine that applies to surveillance, the 4th Amendment, etc., I am certainly all ears.

You wrote:

"My complaints are with any statute that is used to legally justify fishing expeditions, or enable property rights of carriers and the privacy of innocent individuals (who also have a property interest in their details and activity even if disclosed voluntarily where there is an undertaking or implication that it will not be disclosed to other parties by the carrier) is being violated, and that a turn-key tyranny society is in the making as a result of such statutes and how they are being used."

You'll get no argument from me that the government should not be allowed to go on fishing expeditions, so then people need to get down to brass tacks and analyze the statute to see if it permits fishing expeditions.

Michael

Ditto.

Robert's picture

Re-reading your posts with regard to NSA, FISA et al. Thank you for some sober and balanced analysis.

If I had one quibble it would be with your swipe at hair-on-fire Libertarians screaming about "Big Brother" and the "Surveillance State". I'm starting to think that they may be on to something.

Look at this scandal as part of a larger mosaic alongside all the others and the actions of Holder's (in)Justice department, Napolitano's Homeland Security Dept. (buying up guns, ammunition, AFVs in-spite of a sequester), HHS secretaries strong-arming Big-Pharma for pro-Obamacare 'non-profits,' the EPA declaring CO2 as a pollutant & monitoring farmers with drone-recon aircraft. . .
And that's before we go into the dubious justifications for sending guns and troops to Libya and Syria.

To think that we are arming Rebels who have declared allegiance to Al Quaeda/Muslim brotherhood, but a teenager is arrested in WV for wearing an NRA tee-shirt and California has just past a law that you need a license to buy ammunition.

Looking at it separately may look like "a large collection of disparate parts flying in close formation" (can't attribute that quote) but when you look at the whole thing: it's a freaking attack helicopter with a nut-job at the controls.

Frankly, after 4-years of this crap, I wouldn't trust this administration with a pair of tin-cans linked by a piece of string. Constitutional or not, the legislation that allows these idiots to behave like this needs to be taken off them and locked in a gun-safe until we can get some adults back in DC.

You probably agree with all of this, but I work with Democrats who are A-OK with this B.S. because Obama is their Quarterback and their team can do no wrong.

Sometimes I need to vent.

Michael

tvr's picture

I confess I did not read your prior posts on this thread thoroughly, and so apologize for your having to repeat yourself in places. Based on what you have written in your last reply it seems we are in agreement on the fundamentals, except maybe for the definition of property, and whether there is a property interest held by first and second parties in any communication exchange where their details are disclosed to the third party carrier voluntarily and where an explicit or implicit undertaking to protect the privacy of that information exists between all the three parties.

Property is that which is 'proper to' a person. The product of one's own effort is certainly the genesis of property, and exclusivity of control makes that property owned, but I would say that the concept of "property" is broader than this and is best defined as: any new utility introduced to a thing on account of one's own effort so long as the introduction does not take away from another person's existing property (unless consent is first obtained), and/or any utility that is contained in a thing and acquired by voluntary exchange. Property is thus the ownership of onerous utility where no voluntary exchange has taken place, and of free utility (arising from the effort of others) where an exchange has taken place. If one owns something that is not property by this definition it is plunder, since it is utility resulting from the effort of others but acquired without exchange/their consent.

"In any event, your main complaints against the Patriot Act are....?"

My complaints are with any statute that is used to legally justify fishing expeditions, or enable property rights of carriers and the privacy of innocent individuals (who also have a property interest in their details and activity even if disclosed voluntarily where there is an undertaking or implication that it will not be disclosed to other parties by the carrier) is being violated, and that a turn-key tyranny society is in the making as a result of such statutes and how they are being used. The intricacies of law is not my area of competence, and I am not familiar enough with the Patriot Act to comment further at this point (looking at it is near impossible for the lay person to make sense of). Your input thus far has been insightful though, thank you.

Terry

Terry

Michael Moeller's picture

No offense, Terry, but at this point I think you are arguing just to argue. I honestly don't know which one of my essential points you dispute, as you seem to agree with them.

You wrote:

"So are you claiming that if you are suspected of being a drug dealer, for example, then the government using civilian criminal law can compel Verizon to hand over its phone records for the entire country because of your suspected drug dealing?"

But I already stated this to Dan:

""By my own reading of the statute, I think it can being easily argued that the collection of telephone records of everybody is too sweeping, and a violation of the statute. The government should first have to establish a connection with a foreign agent or somebody or foreign terrorism. Eg. A terrorist cell phone calls a number in the US, THEN the government gets the records on that phone number.
[...]
"In any event, civilian criminal law is broader in scope. A prosecutor can get the same information based on any crime, not just foreign terrorism.""

I already made the argument that the collection of everybody's phone records was "too sweeping", and I used the language of the statute.

I don't mind repeating myself, but this is about the 4th or 5th time now, which makes me think you are not actually reading what I wrote.

You wrote:

"I have no problem where there is reasonable grounds for subpoenaing the evidence and there is proper judicial oversight. NSL information requests (which should be called orders, not requests), differ from subpoenas in that they include non-disclosure provisions, a lack of judicial oversight and clearly in the case of Verizon, there was no reasonable grounds because the information gathered was not for the purpose of investigating specific suspects."

First of all, Verizon was a FISA court order under Section 215 Business Records, not an NSL.

If you want me to address NSL's and non-disclosure requirements, I will, but I believe I already covered them in this thread. First FISA being a "rubber-stamp", now NSL's and non-disclosure requirements. This is starting to read like the ACLU checklist of arguments against the Patriot Act.

For the record, NSL's are not new to the Patriot Act. They go back to the 1970's.

And the elephant in the room here, which I addressed previously on the thread but haven't discussed much in this go-around, is the separation of powers. I have been comparing with civilian criminal law for a sense of perspective, but the Framers gave wide discretion to the Executive Branch in issues of foreign policy, including foreign surveillance, military tribunals, and detention. And it was carried out this way at the time of the Framers.

The remedy was not "judicial oversight" or the Judicial Branch. Madison gave that power to Congress, which he termed "the power of the purse". That is, if Congress thought the Executive was overstepping the authority granted to him in foreign policy, the remedy was to either defund the war, or impeach the president.

SCOTUS, though most of history and until the recent detainee trials, has always showed great deference to the Executive Branch in these matters because of that. The separation of powers and how far they extend in terms of foreign policy is still a raging debate, but now all of a sudden the subject is approached as if civilian criminal defendants.

This proscription of Madison's is important to keep in mind as you talk about "judicial oversight" because that was not his remedy.

You wrote:

"Are you proposing that the government should have the power to compel 3rd party property to be turned over without a shred of evidence existing of how the property relates to a specific and legitimate investigation?"

Where have I said anything remotely close to that? As my quote above illustrates, I hold no such thing. In fact, as the quote illustrates, I think the Patriot Act should be construed according to the statutory language, which is circumscribes investigations around a foreign agent or US citizen connected with foreign terrorism. It doesn't even say domestic terrorism.

You wrote:

"Do you deny there is such a thing a right to privacy? I hold there is, namely, the right to exclude others from knowing things about you. How is the right achieved? Through the right to property. All rights are implemented through the right to property."

Ok. I said earlier that it is only valid if viewed through right to property.

The problem, Terry, is that this is not the way it is judicially-viewed, particularly by the left and some libertarians. In fact, as the recent DNA case illustrates, the "right to privacy" turned the 4th Amendment on its head by allowing physical intrusion into a person's body. That's why I approach it with trepidation.

You wrote:

"To make your definition match mine you would need to add the word "rightly" before "exercises". The difference being that of property and plunder. Ownership is not necessarily ownership of property – it can also be ownership of plunder."

Well, if I am talking about the "product of one's effort", obviously I am talking about production, not theft or plunder. That's really usurping the product of somebody else's effort. But pick away!

Last up:

"And I agree too, except, property you here call evidence of a crime has to be known to be evidence of a crime before it can legitimately be called evidence of a crime. It is about there being somespecificity to a reasonable standard."

Well, that's not the standard for a subpoena. I mean, it is rather hard to know that a document will be a piece of evidence until you actually see what's in it. The standard is usually a reasonableness standard or material to a crime to prevent the government from going on a fishing expedition.

In any event, your main complaints against the Patriot Act are....?

Michael

Michael

tvr's picture

"You do realize that in civilian criminal law, the government can get the same evidence without prior court approval (i.e. a court "rubber-stamp"), nor Congressional oversight or the "minimization procedures" given in the Patriot Act, right?"

So are you claiming that if you are suspected of being a drug dealer, for example, then the government using civilian criminal law can compel Verizon to hand over its phone records for the entire country because of your suspected drug dealing?

"I think this question might get to the heart of the matter: do you have a problem with the government subpoenaing evidence held by a 3rd party?"

I have no problem where there is reasonable grounds for subpoenaing the evidence and there is proper judicial oversight. NSL information requests (which should be called orders, not requests), differ from subpoenas in that they include non-disclosure provisions, a lack of judicial oversight and clearly in the case of Verizon, there was no reasonable grounds because the information gathered was not for the purpose of investigating specific suspects.

"I mean, in order for the government to get evidence held by a 3rd party, do you propose that they first have to establish some indicia of criminal conduct where the person is not a criminal?"

Some evidence, yes. Enough evidence to establish probable cause, no. Are you proposing that the government should have the power to compel 3rd party property to be turned over without a shred of evidence existing of how the property relates to a specific and legitimate investigation?

"I already said that the "right to privacy" is not mentioned in the 4th Amendment, nor is it the foundation. The foundation is property, and I stated how I regard property held by a 3rd party."

Do you deny there is such a thing a right to privacy? I hold there is, namely, the right to exclude others from knowing things about you. How is the right achieved? Through the right to property. All rights are implemented through the right to property.

"Again I ask: does your concept of "privacy" permit the control over property of another?"

When that third party has given privacy undertakings in regards to that information, or such an undertaking is implied, then yes. Where no such privacy undertaking has been made by the third party to the one disclosing the information, then no.

Your definition of property: "The product of one's effort over which one exercises exclusive use, possession, and disposal."

To make your definition match mine you would need to add the word "rightly" before "exercises". The difference being that of property and plunder. Ownership is not necessarily ownership of property – it can also be ownership of plunder.

"When property is evidence of a crime and held by a 3rd party, the government may compel it temporarily in pursuit of justice. This is the issue of subpoenas, which Rand agreed with, btw."

And I agree too, except, property you here call evidence of a crime has to be known to be evidence of a crime before it can legitimately be called evidence of a crime. It is about there being somespecificity to a reasonable standard.

Terry

Michael Moeller's picture

You wrote:

"The FISA court is a rubber stamp court. Even a former NSA analyst has said so. Up until 2004, of 18,765 warrant requests, 18,761 warrants were granted. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government (see http://en.wikipedia.org/wiki/U...). There are no checks and balances as I would define checks and balances to the powers that are granted to the NSA by this court. They seem to have free reign to do as they please."

I always find it interesting when people bring up FISA being a "rubber-stamp". You do realize that in civilian criminal law, the government can get the same evidence without prior court approval (i.e. a court "rubber-stamp"), nor Congressional oversight or the "minimization procedures" given in the Patriot Act, right?

To put it another way, it is a easier to get the same information under civilian criminal law. And the "checks and balances" are the same as for criminal law. That is, if production of the evidence results in self-incrimination or is too wide in scope or results in the disclosure of privileged communication, then the third party has grounds to quash it. You are pretending as if no such "checks and balances" exist.

I think this question might get to the heart of the matter: do you have a problem with the government subpoenaing evidence held by a 3rd party?

As to Verizon, you are conflating two different things. Let's break those two down:

The suspect against whom the evidence is sought.

If phone records of Suspect A are held by Verizon, then those records are not Suspect A's property. We both agree on this.

Now, do you propose that Suspect A should be able to stop the government from getting Verizon's property -- whether Verizon voluntarily discloses it or the government subpoenaes it?

The 3rd Party Whose Property is Evidence.

We both agree that the phone records are Verizon's property. No issue there.

But somehow, and I don't know how, you turn this into treating them as "guilty until proven innocent". The whole point of the ability to subpoena evidence/property held by a 3rd party is that they are a 3rd party, i.e. they are not a suspect.

Imagine that the government required "probable cause", they could not get evidence held by a 3rd party! You would be asking the government to establish probable cause of a crime (or "possible cause", however you define that) when the 3rd party has committed no crime, which is totally illogical.

I mean, in order for the government to get evidence held by a 3rd party, do you propose that they first have to establish some indicia of criminal conduct where the person is not a criminal?

That's why I ask your position on the government's ability to subpoena evidence/property held by a 3rd party?

Now, the situation does arise where the 3rd party production of evidence -- either testimony or physical evidence -- may result, say, in self-incrimination. That's why there are "checks and balances" like the ability to quash the subpoena, or immunity statutes.

You wrote:

"The right to privacy rests on the right to property and a presumption of innocence. Civilization is a movement toward privacy."

I already said that the "right to privacy" is not mentioned in the 4th Amendment, nor is it the foundation. The foundation is property, and I stated how I regard property held by a 3rd party.

Whenever I hear "privacy" in the 4th Amendment context, it is usually the suspect's (i.e. Suspect A) assertion of control over the 3rd party's property (i.e. Verizon's phone records).

In that case, no, I do not regard such assertions as a march towards civilization. I regard it as get-out-of-jail-free card to criminals.

Again I ask: does your concept of "privacy" permit the control over property of another?

You wrote:

"What is your definition of property?"

The product of one's effort over which one exercises exclusive use, possession, and disposal.

When property is evidence of a crime and held by a 3rd party, the government may compel it temporarily in pursuit of justice. This is the issue of subpoenas, which Rand agreed with, btw.

Michael

Michael

tvr's picture

Yes, I have said that I agree that property is the proper foundation for the 4th Amendment.

"I think you are confusing a court order/subpoena with a search warrant."

The FISA court is a rubber stamp court. Even a former NSA analyst has said so. Up until 2004, of 18,765 warrant requests, 18,761 warrants were granted. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government (see http://en.wikipedia.org/wiki/U...). There are no checks and balances as I would define checks and balances to the powers that are granted to the NSA by this court. They seem to have free reign to do as they please.

In the case of the Verizon court order, what difference does it make in process if the result is going to be the same: Verizon must hand over its property to the government "just because", and not because there is a specific person where there is reasonable cause for suspecting criminal or terrorist activity and where the NSA wants to keep tabs on or investigate suspects prior to obtaining a search warrant on the basis of probable cause to obtain the contents of their communications. The phone records ordered to be handed over are Verizon's property, and I believe that you agree with me that they are. They are not being ordered to be handed over based on reasonable cause though, but handed over on a carte blanche everybody-is-guilty-until-proven-innocent cause. THAT's what I have a problem with, do not consider "right".

The legality of the Verizon court order rests in large part on the 4th Amendment's Third Party Doctrine, which (as far as I understand it) does not recognize voluntarily disclosed information to third parties as being those third parties' property.

The right to privacy rests on the right to property and equally so the presumption of innocence.

Civilization is a movement toward privacy.

How is what has been happening in terms of the growth of the surveillance state together with a lack of checks and balances a movement towards privacy?

What is your definition of property?

I am not arguing that government should not be able to obtain the information it needs to do its job, but in the case of demanding the handing over of property there needs to at least be reasonable (as opposed to arbitrary) grounds for its collection.

Terry

Michael Moeller's picture

You wrote:

"BTW, nowhere in your last post( did you use the word 'right' (except in another sense to the sense I mean), instead focusing on the effectiveness and legality, which was my concern."

What I previously said was this:

"I think the Framers properly circumscribed the 4th Amendment around property. As Andrew McCarthy mentions in the article to which I linked, this results in a 'bright-line' test."

When I say the Framers "properly" did something -- in this case, set property as the foundation for the 4th Amendment -- it means I think they were "right". And they were right.

I am focusing on legality -- but more particularly, constitutionality -- because that is what is being discussed. I assume a moral justification for property isn't necessary here, as I assume we already agree on that. Indeed, I believe you agreed in a previous post that property was the proper foundation for the 4th Amendment.

You wrote:

"I was not referring to the property of the communicator (the contents), but to the property of the carrier. You seem to have read my last post as if I was referring to the former, or am I missing something here?"

Yes, I was talking about the third party. When the government wants Verizon's phone records, they serve Verizon with a FISA order (as they did). As I explained in my post to Dan, this is analogous to a grand jury subpoena in a civilian criminal case.

Once they receive the order, they can go to court and quash it for certain reasons (eg. an unreasonable scope, privileged communication, unduly burdensome) before producing the evidence. When the government has a search warrant supported by probable cause, they serve the warrant then enter the property.

I think you are confusing a court order/subpoena with a search warrant.

Why not require a search warrant for a third party's property? The third party is not implicated in the crime, so it makes no sense to require probable cause.

Michael

Michael

tvr's picture

I was not referring to the property of the communicator (the contents), but to the property of the carrier. You seem to have read my last post as if I was referring to the former, or am I missing something here?

BTW, nowhere in your last post(Drunk did you use the word "right" (except in another sense to the sense I mean), instead focusing on the effectiveness and legality, which was my concern.

The Constitution is only as adequate as it is at upholding rights. In this case, the right of the carrier to keep control of what is their property: their client's voluntarily disclosed information.

Terry

Terry

Michael Moeller's picture

I gave the answers in my last post.

I said the Framers were right to view it through the lens of property, not right simply because the Constitution says so.

I get the impression you think the Constitution is inadequate here, am I incorrect?

I also said a third party does receive a court order, in this case a FISA order, and they can go to court and quash it. As I explained in my post to Dan and as is contained in the part of the statute I quoted, the order is not willy-nilly. It has to be based on a foreign agent, or a US citizen connected to foreign terrorism, just like a subpoena has to be based on a crime in criminal law.

The standard is lower than a search warrant, but the person against whom the order is issued is not implicated in a crime. It is like subpoenaing a witness. And it can be quashed.

Michael

More questions

tvr's picture

Michael,

You wrote:

"... even though the new standards are not only more effective, but also constitutional."

The new standards may be effective and constitutional, but by what standard? Should not the standard be that which is right? In other words, do you agree that effectiveness and constitutionality should in every case result from and be subordinate to identifying and upholding rights, and not the other way around? If you do, and you also agree that what is recorded on the outside of a communication is the property of the party who performs the function of delivering that communication, how then is it not a breach both of the 4th Amendment and the delivering party's property right for a government agency to force the handing over of that property – i.e. for the property owner to have their 'papers' "searched and seized" - and not even by court order relating to a specific criminal investigation, but by bureaucratic powers and the long arm of government which lacks checks and balances and thus invites abuse?

What is your position on the 4th Amendment's Third Party Doctrine?

Terry

Terry

Michael Moeller's picture

You're welcome.

Sadly, you won't find this type of analysis at many other places. Many on the right are now jumping ship, too.

And I urge you to go read the analysis on libertarian websites. Short on facts and legal analysis, but very long on scare-mongering about "Big Brother" and the "Surveillance State". And they pat themselves on the back for being defenders of civil liberties.

Except this is very far from the truth. Just as overly restrictive (by Constitutional standards) rules of engagement hamstring the military in carrying out their mission, the same is true of intelligence services.

They rarely consider the flip-side when patting themselves on the back. Like when the FBI had Moussaoui, the "20th hijacker" of the 9-11 attacks, but could not get access to his laptop to retrieve the information because the rules against foreign agents were overly restrictive.

Now, libertarians and the left are urging that we return to some totally inadequate pre-9-11 standards, even though the new standards are not only more effective, but also constitutional. I am disgusted, but not surprised. They do the same thing with domestic crime.

As McCarthy rightly said, their toast should be: "Here's to crime!" I would add: "...and terrorism!".

Just last week, another Objectivist on Facebook wrote that we should "repeal the fascist Patriot Act". I asked him what provisions did he regard as "fascist"? He said: "the whole thing", and that I should read his blog for his writing about it.

Well, I knew right of the bat he was bs-ing because not even the most ardent, yet knowledgeable, critics of the Patriot Act state the whole thing is unconstitutional. Their criticisms are usually about specific provisions (eg. the "lone wolf" provision, "roving wiretaps", "John Doe" warrants, etc), which make up very little of the Patriot Act. I scoured his blog to find a discussion, but all I found was a few mentions of the Patriot Act in about three articles, no analysis of the content of the Patriot Act whatsoever.

I then asked him again to point me in the right direction, but he said his blog is hard to search and to look at other areas. He again reiterated that the Patriot Act was "wholly unconstitutional", and that collecting the communications of all American citizens was one example to make it "clear enough for me".

I responded that he is simply spreading one of the myths. The Patriot Act requires a warrant to get the content of any electronic or telephone communications. Period. End of Story. And if he wants to criticize something, he should at least read what it says.

Then he de-friended me on FB, not that I care.

Still, this is pathetic. If Objectivists are going to run around screaming "fascist", yet have little to no knowledge of the facts or the (legal) issues, then they are going to get slaughtered in the martketplace for ideas, especially if they can't take the heat of somebody challenging them.

Sorry for the rant, but this issue deserves some more perspective.

Michael

Michael

tvr's picture

Thank you for your thoughtful reply.

I agree that there can be no privacy without property, and that the two go hand in hand. The question is whether property is properly defined by law. This very question is at the root of the IP debate (I support IP being a legitimate property interest BTW).

You have satisfied me that what is disclosed on the outside of a communication is the property of the one performing the function of delivering the communication, and not the parties communicating.

I need to think more now about how this principle applies to the internet.

Terry

Terry

Michael Moeller's picture

You wrote:

"Do you agree that the 4th Amendment was adopted to combat abuses of the writ of assistance?"

You would need to explain more because I do not see how this is expansive beyond property. The reason these writs were regarded with disdain is that they allowed the search and seizure of property without stating the particular person and place to be search. They were a form of "general warrant".

People like Rand Paul create confusion by introducing the idea of "general warrant" in circumstances where a warrant is not required. That is, if the government wants to search/seize a suspect's person or property, the warrant has to state the particular person or place to be searched/seized. If the items are not the suspect's property, then the government does not need a warrant, and the issue of "general warrant" is moot.

Terry, you wrote:

"Also, do you agree that the intent of the 4th Amendment was to include protection of personal privacy as well as security of property given that the context of the 18th century when the Constitution was drawn up was that individual privacy was in effect fully protected and secured by every person having the right to control their own "persons, houses, papers, and effects"?

No, I do not agree, if "personal privacy" is taken to mean things beyond one's person and property. I would consider this "reading-in" an intent where no such intent is supported by the text of the 4th Amendment, or by the context of the Constitutional debates.

"Privacy" is not mentioned in the 4th Amendment, nor anywhere else in the Bill of Rights. In their writings and debates on the 4th Amendment, the Framers discussed the protections in terms of property, not "privacy". Let me give you an example:

"The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by an oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized". (Speech in Congress Proposing Constitutional Amendments, James Madison, June 8, 1789)

Madison's intent and meaning are clear: to protect a person and his property. In the Constitutional debates, this is always the foundation for the discussion of the 4th Amendment. There is no mention of "privacy" or "private information", much less it extending beyond property. In the Constitutional debates, this is the way it is always discussed, i.e. in terms of property. And SCOTUS analyzed it that way until the 1950's when a nebulous notion of "privacy" entered the picture.

As far as "persons" goes, this means exactly what is said. The government cannot rifle through a person's pockets/belongings, or seize the person, without a showing of probable cause. If a warrant is issued, it has to state with particularity the person and place to be searched (i.e. no "general warrants").

I think the Framers properly circumscribed the 4th Amendment around property. As Andrew McCarthy mentions in the article to which I linked, this results in a "bright-line" test.

In my example of private information in one's garbage, it ceases to be "private information" once I disposed of my property. Property is the linchpin through which one's views "private information", not the other way around.

Terry, you wrote:

"Do not telephone and internet communications replace communication by paper, meaning every call made and website visited is akin to a letter being sent/received? If you agree that they are, then should not the government's priority be to update the 4th Amendment to include telephone and internet activity in a way that is consistent with everyone's right to be secure in their papers?"

Yes, but you need a finer scalpel here.

When a letter goes through the mail, you are voluntarily disclosing your address and the address of the recipient to the common carrier, i.e. a 3rd party. You know it is being voluntarily disclosed because the carrier needs that information to deliver the letter. Any record the 3rd party makes of that information is their property, not yours. Ergo, when the seizure is directed at the record, it is not directed at your property.

You shouldn't have standing to challenge the seizure because it is not your property. Only the 3rd party can challenge it, and they can go to court and quash the subpoena if they want, or they can disclose it to the government.

However, you are not voluntarily disclosing the contents of the letter to the 3rd party. The evelope is sealed. The government needs a warrant to get at it on your end, the recipient's end, or while in the hands of the carrier. This is where the "metadata" vs. content distinction comes into play.

Same is true of email and telephone, and this is where you need a finer scalpel. A record of telephone usage (i.e. the phone numbers and duration of the call) or email usage (i.e. email addresses) are voluntarily disclosed to the 3rd party (i.e. Google or the telephone company). They need this information to connect the call, or deliver the email. And any record made from this information is the property of the 3rd party.

But the content of a conversation or an email is not being voluntarily disclosed to the 3rd party. Just as the government needs a warrant to open up the envelope and see the content of the letter, the government needs a warrant to open up and see the content of your emails, or to wiretap your conversation.

Terry, the content of emails and telephone conversations are protected by the 4th Amendment, and the government needs a warrant. However, telephone usage records (i.e. "metadata") are not protected by the 4th Amendment.

That is the expansion of the 4th Amendment to telephone and electronic communications, and it is done in the same way as a letter was at the time of the Framers.

Michael

Dan

Michael Moeller's picture

You're welcome.

Michael

Michael

tvr's picture

I have some questions.

Do you agree that the 4th Amendment was adopted to combat abuses of the writ of assistance? Also, do you agree that the intent of the 4th Amendment was to include protection of personal privacy as well as security of property given that the context of the 18th century when the Constitution was drawn up was that individual privacy was in effect fully protected and secured by every person having the right to control their own "persons, houses, papers, and effects"?

I trust you agree that the drafters could not have been expected to envisage telephone communication and the internet back then. It would have been inconceivable.

Do not telephone and internet communications replace communication by paper, meaning every call made and website visited is akin to a letter being sent/received? If you agree that they are, then should not the government's priority be to update the 4th Amendment to include telephone and internet activity in a way that is consistent with everyone's right to be secure in their papers?

Terry

Thanks Again!

i.am.dan.edge's picture

Michael,

Thanks again for your excellent, scholarly responses. I will review the information provided.

Sincerely,

--Dan Edge

Good Article

Michael Moeller's picture

As I stated at the end of my last post, the "reasonable expectation of privacy" test is rather elastic, and the proper way to view search and seizure is through property, as that is what the Constitution actually protects.

Andrew McCarthy provides an excellent discussion of this very point.

Rand Paul, and many libertarians, assert that all kinds of things should be protected when, in fact, they are not even the person's property. One's property is what the 4th Amendment protects from unreasonable search and seizure.

Michael

Dan

Michael Moeller's picture

Before getting into business records, I want to make a few things clear first, as it might help you better think about the issues.

"Metadata" vs. Content

The first thing to examine is the type of information being obtained by the government. The widely used analogy is the "envelope". The government can look at what is on the outside of the envelope (i.e. "metadata"), but they need a warrant to look at what is in the inside (i.e. "content"). Eg. The address on the outside of your house is the metadata, everything inside of your house is the content. Your email address is metadata, what you write inside a particular email is the content.

Criminal Law and Patriot Act Legal Standards

"Metadata" is not protected information under the 4th Amendment, but content is protected information. This is true in BOTH civilian criminal investigation and the Patriot Act (i.e. foreign surveillance). If the information is "metadata", the government can get it without a warrant. If the information is content, the government needs a warrant.

The Patriot Act is actually a little tighter for "metadata". Under the Patriot Act, the government needs an order (i.e. not a warrant) from a FISA Court, and the issuance of these orders is subject to Congressional oversight and other "minimization procedures". If the same information is sought by a criminal prosecutor, they use grand jury subpoenas, which usually do NOT need prior court approval, nor is there Congressional oversight and "minimization procedures".

Business Records

The standard evidence law definition of business record is a record made in the ordinary course of business, by a somebody with personal knowledge, and made at or near the time of the incident.

The Patriot Act expands the items that can be obtained, but has much more narrow scope:

"(1)Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."

The statute does not restrict to just records, but "any tangible item". However, the scope is very narrow. That is, the government can only seek this information against a foreign agent, or a US citizen connected with terrorism.

By my own reading of the statute, I think it can being easily argued that the collection of telephone records of everybody is too sweeping, and a violation of the statute. The government should first have to establish a connection with a foreign agent or somebody or foreign terrorism. Eg. A terrorist cell phone calls a number in the US, THEN the government gets the records on that phone number.

I think this is why a number of Congressmen have been quick to point out that only the numbers were obtained, and are not associated with a name, i.e. the information is held in a "box" until such time one of those numbers was associated with a foreign agent or terrorism, then they get the name.

Still, reading the language of the statute, I think there is a good argument that they cannot get the information until it is part of a terrorism investigation. I don't read it to say that the government can collect some information, and then open it up later should it prove useful in a terrorism investigation. The latter would make it more prone to abuse.

In any event, civilian criminal law is broader in scope. A prosecutor can get the same information based on any crime, not just foreign terrorism.

Dan, you wrote:

"I'm sure Google keeps records of email content, recipients, login/logout times, and many other things. Which of these are considered business records? Which would definitely not be considered business records? Why? Could you point me to a good reference, please."

A good reference is the actual SCOTUS decision justifying the government obtaining 3rd party records without a warrant. Note that this is a 1979 case, and the same 3rd party records can be obtained under civilian criminal law.

That's a main point that needs to be underscored here: there is nothing special about the Patriot Act in regards to what type of information can and cannot be obtained without a warrant. The Patriot Act is tighter in many respects, as noted above.

SCOTUS uses the "reasonable expectation of privacy" test. I think the standard is rather elastic, and the "assumption of risk" aspect of the reasoning is not very good.

But applying the reasoning, there would not be a legitimate or reasonable expectation of privacy of your email address and the addresses of the recipients. You know that you have to supply this information to sign up, that Google will store email addresses, and that Google has the means to connect email-to-email. This is analogous to the reasoning in that case where you had to supply numerical information to the phone company, has the means to connect call-to-call, and that the phone company stores call information (eg. number dialed, duration of call, and recipient of the call).

This data is voluntarily disclosed to the third party, so SCOTUS would not consider it a reasonable expectation of privacy. Thus, this would be the "metadata", and I would wager it includes the your email address, the recipient's email address, and the login/logout information.

However, the the text of your emails is not being voluntarily disclosed to a 3rd party. It is between you and the recipient, just like the conversation you have over the phone. Thus, you have a reasonable expectation of privacy, and the text of your email is protected by the 4th Amendment.

That is, the text of your emails is "content" information. The government would need a search warrant to read your emails, just as it needs a search warrant to listen to your phone conversations.

I think there are better arguments than what SCOTUS has used based on your consent to have a 3rd party keep your records, and the records are the property of the 3rd party. The phone company is actually the one keeping the physical record and retaining possession, so the seizure is directed at their property, not yours.

There's further arguments on both sides, but that is neither here nor there as far as the Patriot Act goes. The bottom line is that Patriot Act does not enlarge the scope beyond what is deemed constitutional under civilian criminal law.

PRISM

It really depends on the type of information gathered by PRISM. There are some allegations that PRISM was collecting content information, in which case that would be illegal under the Patriot Act. However, most of Congress (and Obama) is saying that it is just "metadata", in which case it is legal.

Even if the program was entirely legal, I think it is reasonable to ask: why was the scope so large? Why are they gathering "metadata" on just about everyone?

As far as the Patriot Act goes, the intent was that when the government gets the phone number of a foreign terrorist/agent, they want to know who they are calling in the US. Who are the terrorist's point of contacts?

To gather information on everybody is counter-productive. For a criminal prosecutor looking to solve a crime, it does not make much sense to serve a subpoena on everybody in the district. That would only burden the workload in sifting through all that information, which is why a criminal prosecutor will generally seek that information only against suspects.

Even if legal, it does not make much sense to gather information from everybody if you are trying to target terrorists. So what is Obama's endgame?

Michael

Business Records

i.am.dan.edge's picture

Michael,

I'm concerned that the Patriot Act could be used to justiy PRISM.

What qualifies as a "business record" in the context of the Patriot Act?  I've seen "business record" defined as "an exception to the hearsay rule", but there are few specifics about what data types qualify, and the Wiki page on the library records provision didn't help much either.

I'm sure Google keeps records of email content, recipients, login/logout times, and many other things.  Which of these are considered business records?  Which would definitely not be considered business records?  Why?  Could you point me to a good reference, please.

Thanks Again,

--Dan Edge

P.S. I read this whole goddamn thread...

Dan

Michael Moeller's picture

You're welcome.

To my knowledge, I am the only Objectivist to substantively address the issues surrounding Gitmo/detainees, the Patriot Act, military tribunals, etc., unfortunately.

I say "unfortunately" because there are crucial constitutional issues involved, including US laws of war vs. civilian criminal due process, the War Powers of the Executive and Congressional remedies, the scope of the laws of war, 4th Amendment jurisprudence, and much more. These are hot issues, and important issues, and Objectivists simply aren't in the arena.

Too bad.

Michael

Moeller

i.am.dan.edge's picture

Thanks to Michael Moeller and other participants for this thread. So much to explore here.

American Counterrevolution.

Leonid's picture

One doesn't have to drink the whole ocean in order to know that its water is salty. Just see the summary and essence of Patriot Act as it presented by Peter M Thompson :

"the threat to privacy ... appears to be outweighed by the government’s duty to protect national security."-an evil, collectivist statist principle which ignores that without privacy, that is-individual rights, people cannot have any security, cannot be protected from its own government in the first place.

For example think about what section 206 implies: ""Accordingly, Section 206 now permits “the FISA court order to omit the names of individual carriers where the court finds that the ‘actions of the target ... may have the effect of thwarting the identification’ of the carriers.” This allows a more generic surveillance order to attach to a “person” rather than requiring a separate court order identifying each telephone"

The "person" can use land line phone, cell phone, satellite phone, internet, face book, twitter or some other social nets. He can use his own devices or go to the library, internet cafe or borrow them from the friend-there are plenty of possibilities. Now ask yourself-how the agent which conducts the electronic surveillance could know which telephone or computer the suspect will use? There is the only way to do it-to put the suspect under physical surveillance on the ground of some undisclosed probable cause in order to monitor him electronically. But section 206 and 215 doesn't make any provision for that. Therefore these parts of the Act are inherently lawless.

See the the nature of the Act's defender on this thread who endorses classified courts, indiscriminate eavesdropping authorized by these courts and secret trials where people would disappear away from the public eye, without chance to appeal and without trace. See Obamafascist regime which is going to introduce Patriot Act II and maybe III. Put the dots together and you will see that we are on the verge of American Counterrevolution.

Exellent Discussion

Doug Bandler's picture

This discussion has been incredibly informative. I take from it that the libertarians are not to be trusted on anything. That movement is so corrupted as to be worthless. Without Rand, Classical Liberalism and libertarianism are dead. Also, this thread has shown me that the devil is in the details. Something as big as the Patriot Act has to be investigated by an informed eye to really be understood.

Tom

Michael Moeller's picture

You're welcome.

As to the original passage of the USA Patriot Act, it was not via omnibus. To my knowledge, neither were any of the reauthorizations. Omnibus is most often used for appropriations, and probably was used to appropriate money for the USA Patriot Act.

In any event, as you note, that is procedural and does not have to do with the substance of the USA Patriot Act. The controversy over the USA Patriot Act has to do with the provisions that I have named.

As to carrying risks, yes, but so do all other government powers, as any power can be abused. The real question is whether the powers are limited and constitutional.

Tom, you asked:

"If that is true, then why have so many civil libertarians (admittedly, a broad term) not picked up on this, and thought the direct opposite? Can they all be wrong?"

Many limited government people have picked up on it, such as those I linked to. Unfortunately, they are getting drowned out in a deliberate campaign of misinformation coupled with hysteria.

Nothing more than another installation of the AGW phenomenon. In that case, you have a bunch of leftists dedicated to government control, so they created this ruse of AGW. They cherry-pick data and present false information, then they all band together in an alleged "consensus", citing each other's opinions as proof.

Same thing here. The leftists united with Ron Paul-esque libertarians, all united against US national defense and the prosecution of the war on terror. They chose Gitmo and the USA Patriot Act as the issues with which to issue this assault, just like AGW. They've provided all kinds of false information and drummed up hysteria (see, eg., the videos where Rand Paul and Napolitano start talking about FBI agents entering your house in the middle of the night without a warrant.) Then they cite each other's opinions as if it is an established fact.

And Leonid stepped right up to the plate to give us a fine, fine demonstration of the whole process at work.

He started out by finding an ACLU article, and then copied and pasted the summaries -- undigested, un-analyzed, and unconsciously. Then he starts in with the hysteria about "Stalinism" and "Politburos" and "Gulags" and yada yada -- all the while demonstrating he has no grasp of the facts, the law, or American history.

I give him other analyses to look at, and he dismisses them as not "addressing" the issues, even though they have extensive legal analysis of the issues.

His mind slammed before he ever understood the nature of the issues and the law itself -- never to be opened again.

I've observed the same phenomenon when debating AGW people, and these leftists are often the same people. Same mentality and tactics, different issue. Nothing more.

Michael

Leonid's "Rebuttals"

Michael Moeller's picture

In the links I provided, I think it is quite obvious that Leonid reached for any language he could find without understanding nary a word. I asked him to dissect the analysis of various provisions, such as the "lone wolf" provision, "John Doe" warrants, "roving" surveillance, business records, and NSL's, and here is how Leonid responded:

"Your legal experts didn't address them either. They just said that Patriot Act is a weaker tool in fighting of terrorism than previous criminal laws."

Really?

The title of Thompson's article is: "White Paper on The USA PATRIOT Act’s
'Roving' Electronic Surveillance Amendment to the Foreign Intelligence Surveillance Act". Thompson covers pretty much the entire legal and historical context of both criminal and foreign intelligence applications of "roving" wiretaps, including "John Doe" warrants.

Leonid says he didn't "address" any of these issues.

In Kerr's Congressional testimony he covers the legal requirements for physical searches, for 3rd party business records, and the surveillance of internet communications. In his white paper, Kerr goes into extensive analysis of what is required for government surveillance of certain types of information, including content (eg., your telephone conversations, the content of your emails) vs. "non-content" (eg. business records) information.

Leonid said he did not "address" any of these issues.

McCarthy actually covers each one of the issues, and breaks it down in lay terms. (Correction: The third link in my last post was the wrong link, here is the correct link.) Let me just quote a few examples to see if McCarthy did not "address" them, per Leonid's suggestion:

"One of the three provisions in the reauthorization is a good example: the business records provision (which opponents demagogued as the “library records” provision even though library records are not mentioned in it — though they are covered in its sweep). In a terrorism investigation, Patriot’s business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in questio. Contrary to Patriot Act procedures, I did not have to apply to a court for permission, and I did not have to certify that the information I was seeking was relevant to some legitimate investigation … and if the documents demanded were not produced, I could have the custodian of the records jailed for contempt.
[...]
"Concerns about “John Doe” warrants — i.e., roving wiretap authorizations that do not name a specific person or place to be surveilled — have been discussed since 2001. Two things stand out. First, although we’ve now had this provision for close to a decade, civil liberties advocates like Mr. Friedersdorf and Cato’s Julian Sanchez still have to couch their objections in the subjunctive mood: the warrants “raise the possibility” of overbreadth abuses “disturbingly similar to the ‘general warrants’” prohibited by the Fourth Amendment. That is, although the Patriot Act has been examined, debated, and reauthorized a number of times since its initial passage shortly after 9/11, critics still have no concrete record that roving taps have been systematically abused, so they have to raise potential abuses that never seem to materialize. Since all power, not matter how exactingly limited, can be abused, this doesn’t get us very far.

Second, note the irony in the civil liberties critique of the Patriot Act: The rule of law, critics say, requires that we interpose courts in national security matters as to which, until the last 30 years or so, they were understood to have neither the requisite political accountability nor institutional competence. Yet, when critics get their wish and courts are interposed, it turns out, we can’t trust them either — they’re just rubber stamps who might give the government carte blanche to tap everyone, everyplace, without a showing of cause.

As should have been obvious on its face, and as history elucidates, judges are not going to sign general warrants. The Justice Department and the FBI know that, and are consequently unlikely to propose such warrants (and it’s worth pointing out that national security wiretap applications go through a different and more rigorous in-house vetting than criminal wiretap applications). Quite apart from that, however, Mr. Friedersdorf omits mention of the probable cause requirement.

Even if national security agents do not know the precise name of the target of their surveillance application, or the precise location or communications instrument that the target will be using, Patriot bars the judge from issuing the warrant in the absence of probable cause that the target — who must be described even if agents don’t yet know his name — is an agent of a foreign power. (International terrorist organizations are “foreign powers” and their operatives are “agents” under federal law.) Similarly, the judge may not authorize eavesdropping unless the agents provide probable cause to believe that “each of the facilities or places at which the surveillance is directed is being used or about to be used” by this foreign agent.

These restrictions, coupled with the reluctance of federal judges to authorize searches that run afoul of the Fourth Amendment’s ban on general warrants, explain why roving wiretaps have worked well for the last ten years and why the sky has not fallen, as civil liberties advocates predicted it would. Mr. Friedersdorf is correct in claiming that John Doe warrants could “pose a high risk of ‘overcollecting’ innocent Americans’ communications.” What he doesn’t even hint at (although I won’t say “as usual”) is the national security concern that delay in seeking authorization until the precise foreign agent can be identified and the precise location and phone are ascertained could result in the loss of vital intelligence — the information needed to stave off an attack. That is why Mr. Friedersdorf’s analogy to law enforcement protocols does not work in this situation. It’s not like missing a few calls might result in a kilo of heroin getting onto the street or a mafia hit. In the national security context, missing a few calls might prevent us from stopping a catastrophic attack in which hundreds or thousands of people are killed."

Leonid says he did not "address" these issues.

Either Leonid cannot read what is right in front of his face, or he making one of the worst attempts I have ever seen and trying to pull off a lie.

I had to laugh at the following line from McCarthy, it fits poor old Leonid like an old shoe:

"Yet, when critics get their wish and courts are interposed, it turns out, we can’t trust them either — they’re just rubber stamps who might give the government carte blanche to tap everyone, everyplace, without a showing of cause."

How many times has Leonid repeated this canard? It's gotta be at least 100 by now. McCarthy has these people nailed cold.

Michael

More Buffoonery

Michael Moeller's picture

Leonid's analysis amounts to this:

"[Quoting Kerr]: 'The law governing monitoring for intelligence purposes is somewhat different than the law governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear – and generally less strong – than in the routine criminal context'

Leonid: 'So, what is the problem? Repeal Patriot Act and go back to the good old criminal laws.'"

Just like I said, Leonid is arguing for a criminal law approach to foreign surveillance, which includes foreign enemies at war with the America that often fall outside US jurisdiction. Leonid again demonstrates that he doesn't even know there are two separate bodies of law for ordinary criminals, and for foreign intelligence. Going back to the "old approach" means going back to the old foreign intelligence law, NOT criminal law. Again, two separate bodies of law.

And the part he quotes from Kerr? This is true. The history of constitutional law for foreign intelligence is generally less strong in its protections because it is dealing primarily with foreign enemies at war with the US. Again, enemies that can fall outside US court jurisdiction. When it comes to war, the Founding Fathers, and the SCOTUS that followed, have granted wider discretion to the executive branch precisely for this reason.

And what does Leonid leave out of Kerr's analysis? The paragraph immediately following that details what Congress did with the USA Patriot Act:

"Congress has responded to the challenge by passing the Foreign Intelligence Surveillance Act, also known as “FISA.” FISA attempts to create a statutory regime for intelligence monitoring that largely parallels analogous rules for gathering evidence in criminal cases. FISA covers the three basic authorities as follows: First, 18 U.S.C. §§ 1821-29 covers the authority to conduct physical searches, a parallel to the provision of the Federal Rules of Criminal Procedure that allows investigators to obtain a search warrant in criminal cases."

Constitutionally-speaking, even though there are less restrictions for foreign surveillance than for ordinary criminal law, Congress still mirrored the USA Patriot Act after criminal law, even though they did not have to. That is why -- contrary to Leonid's ignorant blathering about searching "everybody anytime" -- the USA Patriot Act has the same probable cause requirements for surveillance and physical searches as criminal law.

Kerr IS making the same point as McCarthy; namely, when Congress was confronted with updating the law of foreign intelligence, they simply brought it in line with the existing standards under criminal law.

Kerr adds that, under constitutional law, Congress did not have to. Yet, Congress did it anyway.

And ignoramuses like Leonid are screaming about "Stalinism". Go figure.

Michael

Pass the popcorn

Richard Goode's picture

A Fine Demonstration...

Michael Moeller's picture

That Leonid understands absolutely nothing. He cannot even grasp the simplest of points. Leonid wrote:

"They just said that Patriot Act is a weaker tool in fighting of terrorism than previous criminal laws."

Leonid apparently cannot recognize the difference between criminal laws (murder, arson, etc.) and the investigation thereof, and laws directed at foreign intelligence ("FISA") and the investigation thereof. Two separate areas of law with different investigation authority.

What McCarthy is saying is that the old FISA -- the old law for foreign intelligence -- was weaker than ordinary criminal law. What he is also saying is that the USA Patriot Act is simply bringing the law on foreign intelligence in line with basic criminal law. That's how outdated and inqdequate the old FISA was, it did not even grant the FBI and CIA the same tools for investigating jihadis that the police have for common criminals.

Far from being a "contradiction", this makes perfect sense. Should the CIA and FBI have tighter restrictions when investigating jihadis than police do when when investigating common criminals? Of course not! That's totally absurd! And that is all McCarthy is saying, but Leonid, using his gorilla logic, is so stupid he cannot grasp this elementary point.

McCarthy makes the point multiple times, and notes that the Patriot Act is still often more restrictive than ordinary criminal law:

"For the most part, Patriot simply endowed the national security side of the FBI’s house with the same powers that had long been exercised by the law-enforcement side. Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures."

After failing to grasp this most elementary of points, Leonid repeats another idiotic argument that I have refuted multiple times, and is refuted in the articles, namely:

"The issue of "appearance " of engagement in terrorist activity I already addressed. Since nobody knows what that exactly means, it could be applicable to everyone anytime."

I don't know how many times I have corrected him on this, even quoting the statute for him, and he STILL repeats this nonsense.

If you are an American citizen, the very first thing the government has to show to conduct a physical search or surveillance is probable cause that you are a foreign power or an agent of a foreign power, i.e. probable cause that you are working with Al-Qaeda or its affilitates. That means, if you are an American citizen, the government has to show specific facts that you are connected to Al-Qaeda or its affiliates. Even if you are NOT an American citizen, the government still has to at least show probable cause that the person is engaged in terrorism or the preparation thereof.

Leonid calls this "applicable to everyone anytime". Not only does Leonid miss the boat, he misses the entire ocean.

Worse, Leonid provides this howler:

"I think you afraid that I grasped them too well..."

Unfortunately for Leonid, there is zero chance of that.

Now, Andrew McCarthy put the "Blind Sheikh" behind bars for the 1st WTC bombing, is one of the most prolific writers in America on the laws of war and their as history as they relate to the Constitution, and has written two books on these topics, including the relationship with Islamic ideology.

Then we have Leonid. No knowledge of law, American history, the Constitution, or even basic facts. Yet, this fifth columnist and Islamic apologist has the audacity to McCarthy a "power-lusting bureaucrat".

In honor of Leonid, I find this clip appropriate:

Michael

"You have not addressed their

Leonid's picture

"You have not addressed their points on any of these allegedly controversial provisions"

Your legal experts didn't address them either. They just said that Patriot Act is a weaker tool in fighting of terrorism than previous criminal laws. Wonder why they are so kin to fight for it? Maybe they have only one concern-to have a free access to all private electronic communications without to worry too much about terrorism. Besides, you are wrong. I did address all these issues in my previous posts. As I said, for me the case is closed.

"I think you just proved that you cannot even grasp the most basic of points."

I think you afraid that I grasped them too well, as many other people in America and around the Globe.

Um, Leonid...

Michael Moeller's picture

I think you just proved that you cannot even grasp the most basic of points. I am seriously questioning your literacy at this point. Now, before I shred your points to pieces, are you going to address any of the **substance** of the USA Patriot Act?

"John Doe warrants"? The "lone wolf" provision? Business records? "Roving" surveillance? Anything of substance regarding the USA Patriot Act?

You have not addressed their points on any of these allegedly controversial provisions. No rebuttal of their analysis on any of the provisions, and why they are wrong. None. Zero. Zippo. Nada.

Are you going to address any legal substance or not?

Michael

Peter M Thompson

Leonid's picture

Peter M Thompson, however is much more eloquent.

"Prior to roving wiretaps, law enforcement agents and federal prosecutors had to invest
substantial time and resources in obtaining a separate wiretap order for each additional telephone used by a subject during an investigation. Unfortunately, and quite often, this resulted in a loss of valuable evidence through missed wiretap conversations relating to the criminal activity being monitored...FISA established a classified special court to review electronic intercept applications comprised of seven United States District Court judges (drawn from different circuits) appointed by the Chief Justice of the United States."

Here is the right word- not a secret court but classified. A clandestine tool of justice.

"Accordingly, Section 206 now permits “the FISA court order to omit the names of individual carriers where the court finds that the ‘actions of the target ... may have the effect of
thwarting the identification’ of the carriers.” This allows a more generic surveillance order to
attach to a “person” rather than requiring a separate court order identifying each telephone"

He simply dismisses the objection that “the back door to massive wiretapping” might be opened" and why so?
"Regardless, even if one accepts the proposition that FISA surveillance can lead to Fourth Amendment violations, such as an “incidental” intercept during a roving wiretap at a library, the available remedy is a case by case exclusion of the conversations or other evidence seized by virtue of the roving surveillance order. Therefore, if FBI agents employing FISA surveillance obtain evidence against a non-targeted party that leads to criminal prosecution, the aggrieved defendant retains the right to file a motion to suppress the evidence acquired during the FISA surveillance."

As Americans say " So sue me". “ ...the threat to privacy ... appears to be outweighed by the government’s duty to protect national security.”

Well, this explains everything. Total unlimited eavesdropping will undoubtedly elevate the level of American security to that of the former Communist Russia which used to be very secure place.

Go for it.

Orin Kerr

Leonid's picture

Orin Kerr practically repeats the same argument:

"The law governing monitoring for intelligence purposes is somewhat different than the law
governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear – and generally less strong – than in the routine criminal context"

So, what is the problem? Repeal Patriot Act and go back to the good old criminal laws. He also repeats the nonsensical argument in regard to FISA: "For the most part, these weak privacy regulations match the standards applied in the analogous criminal context..."This authority “paints with a broad brush” by design, permitting subpoenas to be issued ordering third parties to disclose physical evidence and information “merely on suspicion that the law is being violated, or even just because . . . assurance [is sought] that it is not.”

Translation-violation of rights is OK. But there is a problem "subpoenas can be easily challenged and can be complied with under few time pressures, both of which are important explanations for the light legal regulations of subpoenas" FISA was created exactly in order to prevent such an eventuality .

McCarthy

Leonid's picture

McCarthy simply entertians public with blatant contradictions. First he says: "Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures... In a terrorism investigation, Patriot’s business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in question"

So pre-Patriot laws were a more effective, more simple tools to fight terrorism. Yet he complains: "All Congress would accomplish would be to revert us (at least insofar as these tactics are concerned) to the September 10 approach under which terrorism was considered a mere crime to be addressed by law-enforcement protocols. Effectively, we would be abandoning the post-September 11 approach that has staved off attack by elevating intelligence gathering and prevention over evidence collection and prosecution (usually after people have already been killed). " If it's true, then he should only endorse the striping of Patriot act, and he again could issue subpoenas on his sole discretion as befits any power-lusting bureaucrat. So what is a catch? Elementary-McCarthy doesn't tell us to which court he has to go for authorization. He doesn't tell us that all decisions of such a court are undisclosed while when he was issued subpoenas he could have been hold accountable. The issue of "appearance " of engagement in terrorist activity I already addressed. Since nobody knows what that exactly means, it could be applicable to everyone anytime.

Um, Leonid...

Michael Moeller's picture

You are not addressing any of the allegedly controversial provisions whatsoever. McCarthy goes over each one of the allegedly controversial provisions in the Patriot Act. Please tell us where he went wrong on surveillance, search warrants, "John Doe warrants", the "lone wolf" provision, business records, and NSL's.

Try again. And this time actually try and tackle the substance of his analysis regarding the USA Patriot Act. Nobody cares about your questioning of his motives, which is a logical fallacy to boot. Please rebut what he or Kerr or The Federalist Society say about the provisions of the USA Patriot Act.

I assume you should be able to shred their analysis, considering you consider the USA Patriot Act akin to Stalinism. Well, have at it.

To make it easy for you, I'll give you all the links again, and you can tell us what is wrong with their legal analysis. I sincerely look forward to it.

Andrew McCarthy: here, here, and here.

Orin Kerr: white paper and Congressional testimony.

The Federalist Society: white paper.

Michael

There is not much to analyse

Leonid's picture

There is not much to analyse here. First McCarty argues that Patriot Act in fact provides more restrictions in regard to freedoms than previous legislation and then he says "Here is what I don’t understand about the GOP defectors’ position. It’s not as if refusing to reauthorize the collection of business records, roving wiretaps, and the surveillance of lone wolf terrorists is going to result in any reduction of federal power. It would simply result in a shift from national security law to criminal law as the source of authority to use exactly the same investigative techniques. All Congress would accomplish would be to revert us (at least insofar as these tactics are concerned) to the September 10 approach under which terrorism was considered a mere crime to be addressed by law-enforcement protocols. Effectively, we would be abandoning the post-September 11 approach that has staved off attack by elevating intelligence gathering and prevention over evidence collection and prosecution (usually after people have already been killed). But it’s not like the federal government’s power to use these tactics would be neutered."

So regular criminal law which according to him is more abusive that Patriot Act is suddenly becomes insufficient to fight terrorism. What he wants then?

Or consider this gem:

"The “lone wolf” provision enables national security agents to surveil an operative who appears to be engaged in international terrorism but as to whom there is currently insufficient evidence of his connection to a known foreign terrorist organization — a pattern that criminal investigators often probe. (Agents frequently learn about what someone is doing before they can nail down whom he is doing it with)"

If there is insufficient evidence, how he appears to be engaged in terror? What are criteria to surveil such a person? Who makes a decision, on what ground and who authorizes it?

Look at this Clown Again

Michael Moeller's picture

Leonid wrote:

"simply don't understand why you think you can fool all the people all the time. In all your links you provided you didn't present one single opinion of the legal or constitutional expert."

The Congressional Research Reports are written by legal experts. Andrew McCarthy prosecuted the first WTC bombing, and is probably one of the foremost legal experts in the USA on laws of war. Orin Kerr is a law professor, former DOJ lawyer, and such a legal expert of the 4th Amendment and surveillance that he testified before Congress on this very subject. The Federalist Society, founded for lawyers that are dedicated to the Madisonian vision of the Constitution, apparently doesn't count as legal experts either, even though the society is made up of legal experts.

Of course Leonid is unfamiliar with these people, because he knows nothing about the law, in particular, and is a buffoon, in general.

Has Leonid after rebutted any of what these legal experts have said? Has he dissected their analyses?

Nope. Not once. Let's see Leonid have a go of it.

No, Leonid would prefer to copy false summaries from the ACLU, or cite news articles of various legal opinions. When he has tried a legal analysis, he has proven himself clueless.

So he says things like "Stalinist" and "Gulag" yada yada yada, as if that is a substitute for knowledge and facts.

Useful idiot willing to swallow any poison pill he is fed, boldly display his ignorance of the law and facts on a public forum, and then resorts to regurgitating the opinions of others as if they are an established fact.

Like I said, let us watch Leonid take on the articles by Kerr, McCarthy, or the Federalist Society. Let's watch some more of his stunning legal analysis, which should be good for a laugh. But he won't, because he can't.

Michael

...this process carries its risks,

Leonid's picture

"Now, one does not have to be a Ron Paul supporter to think this process carries its risks, even if their claims are exaggerated."

You bet it is. There is Patriotic Act II on the way with the compliments of Obama. Please read this testimony and see by yourself the risks.

http://intelligence.senate.gov...

http://www.ruthfullyyours.com/...

Observe that when they mention court, they mean FISA, whose decision couldn't be disclosed even to American President in accordance to the section 215.

Michael

Leonid's picture

I simply don't understand why you think you can fool all the people all the time. In all your links you provided you didn't present one single opinion of the legal or constitutional expert. Besides, what makes you to lie? When did I even mentioned any international court? What makes you to define undefinable and to justify a blatant government violation of rights? You think it will render you safe? You may be right. You will be as safe as a prisoner in GULAG.

Thanks Michael

Tom Burroughes's picture

Michael, thanks for taking such time to spell out a clear defence of the PA and in such detail. Several questions arise, in my view. One is that omnibus legislation of this type can alarm those who fear (not without justification) that politicians with a long shopping list of wanted measures ram them together into a single bill, for better to get what they want rather than to get such measures debated individually and with less chance of success. This applies far wider than the Patriot Act, or indeed to the USA. (Consider some of the monstrosities that pass as legislation in the European Union, for example). Now, one does not have to be a Ron Paul supporter to think this process carries its risks, even if their claims are exaggerated.

Secondly, you point out in several cases where the practices enforced under the Patriot Act are, in fact, more rigorous in terms of respect for rights and due process than under older legislation. If that is true, then why have so many civil libertarians (admittedly, a broad term) not picked up on this, and thought the direct opposite? Can they all be wrong?

Perhaps part of the problem is that the framers of the Act have not done a more thorough job in explaining how the Act is not a threat to freedom and the due process of law. Of course, it speaks volumes that the current Obama administration has kept the Act in force, despite hammering the Bush administration prior to 2008. But that's politics.

Via the Volokh Conspiracy blog, is this: http://www.americanbar.org/gro...

You may have already referenced the Orrin Kerr commentary, but here it is again: http://papers.ssrn.com/sol3/pa...

Tom

Just Look at This Clown

Michael Moeller's picture

Leonid wrote:

"But I asked you to bring one expert opinion to the contrary and you failed to do that."

I've cited experts on the topics, multiple times. I have cited Congressional Research Reports. I have cited Andrew McCarthy, prosecutor of the first WTC bombing. If he is not an expert, I don't know who is. I've cited Orin Kerr, former DOJ and expert on the 4th Amendment and electronic surveillance. He's such an expert, in fact, that Congress brought him forth to testify on the USA Patriot Act and surveillance, and I cited his testimony. I cited a lawyer on the topic from the Federalist Society.

And I cited them many, many times to back my points. See here, here, here, and here

All Leonid did was cite rip off summaries from the ACLU, and quote the opinions of other lawyers with no legal analysis. When I took on the ACLU and showed them to be misrepresentations of fact, Leonid simply moved on to citing opinions of other lawyers, as if that is proof of unconstitutionality. Of course leftist lawyers disagree, where is the surprise!

Leonid has no clue -- absolutely no clue -- what he is talking about so he thinks if he cites the opinions of other lawyers in news articles his case is made. This is exactly what leftists do on global warming. They cite each other's opinions, and then use that as proof there is a "consensus" and that their opinions are true.

Why does Leonid continue to do this? Because he waded into a topic on which he has no knowledge, and he IS a useful idiot.

Michael

You're Really Desperate

Michael Moeller's picture

No, I used that quote to rebut one of your falsehoods that FISA orders are never rejected. They are rejected, but most often now thousands get modified. As luck would have it, we get to revisit one of your previous, and many, misstatements of fact. Let me refresh your memory:

"Leonid: "But since FISA court operates away from the public sight and its decisions undisclosed, nobody can say whether or not the court order is supported by any evidence. This is not a court but Stalinist Special Council. As a matter of fact so far no application to FISA has been rejected."

Michael: He says no application has been rejected. Wikipedia says otherwise:

Quoting Wikipedia: "It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four). Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government."

You are so ignorant that you took the 18,000 number to mean Section 215 court orders. Not my fault you don't know what you are talking about.

Going to misrepresent anything else?

Michael

Michael, you are confused

Leonid's picture

"The 18,000 number is the number of TOTAL FISA court orders, not just Section 215 -- the section you were complaining about."

You are confused. You quoted this number while we discussed section 215. Now you claim that this number doesn't refer to the subject matter. Why did you bring up that quote then and to what it refers? Does FISA also deal with traffic fines? Don't answer, you will make yourself ever more confused. The case is closed.

Leonid...You Are Dense and Desperate

Michael Moeller's picture

Leonid stated:

"Michael objects to my criticism "Besides, you consider over 18000 applications as a rare use?", saying "I said no such thing"

You are now resorting to snipping quotes from different topics! Man, you are pathetic.

I said **Section 215 FISA orders** -- the ones you keep complaining about -- are rarely used. This is true. FISA issued none in the first two years of the USA Patriot Act, and have since generally issued less than 20 per year in the entire USA.

The 18,000 number is the number of TOTAL FISA court orders, not just Section 215 -- the section you were complaining about.

You done being ignorant yet? I suspect not.

Michael

The case is closed.

Leonid's picture

As I mentioned before, I'm not a lawyer and now I can see that you are also not. You simply don't have the needed qualities. However, even so you should know that the whole legal process is a process of the constant interpretation of the law. You also should realize, that whole American legal constitutional system is based on the one single principle- the protection of the individual from the abusive government that hold a gun. I cited opinions of many top legal experts who think that Patriot Act undermines this system. I cited a fact that 74% of the top American lawyers think that such a law violates individual rights. I quoted two American Federal Judges who declared parts of this law as unconstitutional. Granted, they all leftists, Islamopologists, stealth Jihadists and useful idiots. But I asked you to bring one expert opinion to the contrary and you failed to do that. You keep to repeat the same weak argument-the law is fine because it's just an extension of the current abusive laws. Well and fine. As far as I concerned, the case is closed. As for you, evidently you don't know what is the meaning of life under the constant secret surveillance of the government agencies, which can intrude and maim your life any time just because they think they have a probable cause to do so. However if you will continue to endorse this kind of legislation, you'll learn pretty soon. Galt save America.

detention and trial.

Leonid's picture

"POW's don't receive nearly that -- all they get is "indefinite detention".

Please get this-POW are not criminals, they are captured soldiers. Therefore they are not tried . unless they committed war crimes. You keep them in detention simply in order to prevent them to return to the battle field. With the cessation of hostilities they simply go home. Such a detention is not a punishment. Terrorists are mass murderers, and when captured, they have to stand a trial and to be punished. Therefore , indefinite detention of the POW could last few months or maybe years. Terrorist could have a life sentence or be executed. See the difference?

As for Mossad, they kill terrorists wherever they could, and they do a right thing. Every Israeli soldier does the same, and he doesn't need a field lawyer for that. But when terrorist is captured alive, he stands trial and rot in jail as a criminal, not just as a detainee. Exactly what is your problem with that?

Applications to FISA

Leonid's picture

Michael objects to my criticism "Besides, you consider over 18000 applications as a rare use?", saying "I said no such thing"

He quoted Wikipedia :"It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four)."

So what these 18,761 warrants refer to ? Liquor licences maybe?

Trial

Leonid's picture

"Only the judge? What happened to the jury you demanded before?"

When I ever demanded jury? How you can find 12 unbiased Americans for the trial of terrorists?

"A semi-closed open forum to hear all the partially-restricted evidence?"

I already answered that. Not all information is classified. From the other hand even in the criminal trial some information could be classified. There are ways to handle it.

BTW, I don't reject the possibility of the military court, as long as it conducted in the open way. However I'd would rather support the establishment of the special anti-terrorist court with all necessary safeguards which would prevent the disclosure of the classified information. But the testimonies of survived victims, policemen, fire-fighters and the terrorists themselves should be exposed as much as possible, and so all unclassified documents.

Well, Which is It

Michael Moeller's picture

First Leonid says:

"Besides, sensitive information could be easily preserved confidential even during the open trial. It could be presented only to the judges, or some sensitive hearings could be closed."

Only the judge? What happened to the jury you demanded before?

Now some unspecified "sensitive hearings" are "closed"? What happened to your platitudes about an "open" trial?

Well, it only takes a few sentences for Leonid to reverse himself:

"Presentation of thousands of documents, a testimonies of hundreds of witnesses is something different. Justice must be seen."

So which is it? Do you want them "open" to thousands of documents and the testimonies of witnesses, or do you want them closed? A semi-closed open forum to hear all the partially-restricted evidence?

I thought you said that you wanted to hear all the government's evidence? Now you don't?

Pick a position, any position.

You see, we do not operate in the Leonid's Imaginary Terrorist Court where one re-fashions the rules ad hoc to suit one's argument of the moment.

Your choice is as follows:

(1) To try them in federal court with all the procedural rights and rules of evidence provided for an American criminal defendant. This means that the defendant gets to cross examine all the governments witnesses on the public record, which also means a number of things become part of the public record: (a) the identity of those working for military and intelligence services, thus exposing them to retribution; (b) the means by which they obtained their information, thus revealing to the enemy our intelligence and military operations; and (c) the identity of informants, who would probably not cooperate and/or other informants would not cooperate in the future because their identity would be revealed, thus exposing them to retribution.

This is why hearings in federal court are regarded as a treasure trove of information for the enemy. And they have been.

And I have not even touched on the negative effects of applying the federal rules of evidence to enemy combatants.

(2) Or you can try them before a military tribunal. The defendant gets a fair trial according the requirements I laid out earlier, but the hearing does not become a matter of public record for the reasons named above, and many more, including not exposing the judge and jury to retribution from terrorists.

Which is it, Leonid?

Michael

My "Maths" Are Just Fine

Michael Moeller's picture

Leonid wrote:

"Well, that makes it even worse. I already mentioned that you have a very peculiar way of reasoning: the existent laws are abusive, they violate people rights. Patriot Act is just an extension of these laws. Therefore Patriot Act is fine. Besides, you consider over 18000 applications as a rare use? Your maths are also queer."

I said no such thing. On top of making up facts, now you are making up arguments that I never made. To the extent I disagree with certain provisions, my only point was that the standard is no different than ordinary criminal law.

In the case of 3rd party business records under Section 215, the law is actually stricter than it is for ordinary criminal law. In other words there is NO expansion for business records under Section 215, as the law on 3rd party business records already applies to Americans and is a lower standard under ordinary criminal. You have grasped nary I word I've said, and have now resorted to making up things I've never said.

My math is fine, you simply do not have a grasp of the facts. 18,000 applications refers to ALL FISA court orders, not just Section 215.

In the first two years of the USA Patriot Act, NO Section 215 orders were filed. None. They typically file less than 20 per year of these orders. And you keep harping on this provision. In fact, this is all you seem to be arguing at this point about the USA Patriot Act.

Why are so few filed? As I've stated one thousand times, and as reported by the FBI Director, it is simply easier to get the same information with an administrative or grand jury subpoena.

Done beating your head against the wall over Section 215 -- a rarely used provision -- yet?

Michael

Leonid Asleep at the Wheel

Michael Moeller's picture

Leonid wrote:

"We never discussed tribunals. I already noticed that you have a problem with comprehension."

You were just crowing about "open" trials, and I just explained to you that the America's longstanding history is to use military tribunals to try enemy combatants.

Did you fall asleep during this exchange? Apparently so, as you wrote:

"What makes you think I'm talking about trials?"

Hmmm, that's a tough one. In the post before, I listed the requirements of a trial via military tribunal, and YOU thought it applied to FISA orders. Here is what you wrote:

Michael: "(1) notice of the charges, (2) a hearing before a neutral magistrate, (3) representation by counsel, (4) the ability to offer evidence in their defense and question accusers, (5) supervised access to the government's evidence (because of the release of sensitive national security information), and EVEN (6) an appeal of their status of "enemy combatant" in federal court."

Leonid: "Section 215 (d) prohibits all these in regard to the search warrant-the topic in discussion."

Of course those don't apply to Section 215, those listed requirements are for TRIALS. Why are you quoting me and saying they do not apply to Section 215 orders if you already knew that? You are acting like they should apply to court orders. You have no idea what you are talking about, as usual.

Michael

Making Up Facts Again, Leonid?

Michael Moeller's picture

Leonid wrote:

"Yes, Mosad kills enemies without trial as any soldier kills enemies on the battlefield. But when Mosad captures them alive, they tried and imprisoned. Not indefinitely, but in accordance to the court's sentences. They are not POW's, but just incarcerated murderers."

?!?!?

Mossad is the Israeli secret intelligence service and they carry out covert operations. They've long been criticized for targeted assassinations!! They've killed a large number of terrorist leaders in their homes, on the street, they've even used car bombs.

Killing a terrorist with a car bomb is the strangest notion I've ever heard for a "battlefield" and a "trial".

And just look at your logic. You say that terrorists are not deserving of POW treatment (I agree), and then you turn right around and grant them more -- you grant them immediate public trials. POW's don't receive nearly that -- all they get is "indefinite detention".

Contradict much?

And that is all you are doing. You are using their non-POW status to be more lenient on terrorists and to grant them more than a POW, while out of the other side of your mouth saying they do not deserve POW privileges.

You're losing it.

Michael

Cannot see what's wrong with it.

Leonid's picture

Not all information is confidential, definitely not that which pertains to the 9/11 attack which happened 11 years ago. Besides, sensitive information could be easily preserved confidential even during the open trial. It could be presented only to the judges, or some sensitive hearings could be closed. A demagogy about "No respect for the consequence" is simply out of the place. Ideology is not on trial. Nazi ideology wasn't hanged by the court sentence, Eichmann was. But this ideology had been exposed. The same should apply to the terrorists. Their ideas, plans, documents would be presented to the court and to the wide public. Cannot see what's wrong with it. Much better than some secret hearing in some remote place, when half of the world is crying bloody murder and nobody actually knows what it is all about. Discussion on the internet is one thing. Presentation of thousands of documents, a testimonies of hundreds of witnesses is something different. Justice must be seen.

"Section 215

Leonid's picture

"Section 215 applies to FISA court orders, NOT trials."

What makes you think I'm talking about trials? We never discussed tribunals. I already noticed that you have a problem with comprehension. What I said is that section 215 prohibits to contest its decisions in the court of law. "Section 215 (d) prohibits all these in regard to the search warrant-the topic in discussion"

"As to Section 215 FISA court orders, and as I have explained 1,000 times, these same business records can be obtained by the government without court order "

Well, that makes it even worse. I already mentioned that you have a very peculiar way of reasoning: the existent laws are abusive, they violate people rights. Patriot Act is just an extension of these laws. Therefore Patriot Act is fine. Besides, you consider over 18000 applications as a rare use? Your maths are also queer.

Leonid...Are You Dense?

Michael Moeller's picture

When I listed those requirements, I was talking about military tribunals.

Section 215 applies to FISA court orders, NOT trials. Let me state this one more time for you because you are oblivious: Section 215 applies to FISA court orders, NOT trials. You've gone totally off the rails.

Any search warrant, including those under criminal law, are just that -- search warrants. They are not trials. Under criminal law, the government goes before a judge and gets the warrant upon a showing of probable cause. The person to be searched is NOT present. It is NOT a trial. Duh!

As to Section 215 FISA court orders, and as I have explained 1,000 times, these same business records can be obtained by the government without court order under ordinary criminal law. Please reread that sentence until you understand this point. The government can compel those same business records with an administrative subpoena or grand jury subpoena under criminal law, i.e. not authorized by a judge.

Hence the reason that Section 215 is rarely used because it is easier for the government to obtain the same information under criminal law. And that is precisely what they do, according to the FBI director.

Michael

Oh for Cripes Sake

Michael Moeller's picture

The Eichmann trial was long after the war was over. There was no sensitive national security information to be made public and put in the hands of the enemy. The Nazis were already finished!! Jeez Louise.

Therefore, Leonid wants public trials where all kinds of evidence about military operations and surveillance will be publicly disclosed, and thus fall into the hands of the enemy. This is totally at odds with America's longstanding laws of war.

But Leonid wants it anyway. Why? Because he likes platitudes about "maximal exposure" for "evil ideology", platitudes about "revenge", and Biblical quotes.

Just one HUGE problem. The ideology is not on trial, but the acts of the defendant, which will require the release of senstive national security information. In turn, this will be delivered into the hands of the enemy to: (1) evade capture, and/or (2) expose military operations and endanger the lives of our military men and women.

No respect for the consequences or the reasons why the proceedings are not made publicly available, just platitudes of "showing the world".

I am sure that Biblical quotes will be of great comfort when the US now misses the capture of a terrorist, and the lives lost because that terrorist would escape capture and go on killing, as well as the exposure of sensitive military operations that result in the deaths of American military men and women.

Putrid, just plain putrid.

And nothing is stopping Leonid or anybody else from discussing the "evil ideology" or "evil acts" on the internet or in any newspaper or anywhere else when it does NOT require the release of sensitive national security information.

Yes, let's dispense with all the negative consequences, America's longstanding history and laws of war, and even basic common sense because Leonid likes platitudes. Real nice.

Michael

notice of the charges,

Leonid's picture

"(1) notice of the charges, (2) a hearing before a neutral magistrate, (3) representation by counsel, (4) the ability to offer evidence in their defense and question accusers, (5) supervised access to the government's evidence (because of the release of sensitive national security information), and EVEN (6) an appeal of their status of "enemy combatant" in federal court."

Section 215 (d) prohibits all these in regard to the search warrant-the topic in discussion.

"(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

Mosad

Leonid's picture

"You mean like the Mossad carrying out executions without trial? Oh, right."

Yes, Mosad kills enemies without trial as any soldier kills enemies on the battlefield. But when Mosad captures them alive, they tried and imprisoned. Not indefinitely, but in accordance to the court's sentences. They are not POW's, but just incarcerated murderers.

Yes, open trials

Leonid's picture

The purpose of such a trial is a maximal exposure of the hideous crime, the objective evaluation of the evil ideology and the lessons for the generations to come. So your comparison with pirates or even Nazi spies is simply irrelevant. For me the best example would be the Eichmann's trial in Jerusalem. Eichmann was a Nazi in charge of the final solution. He did his job well and 6 million Jews perished in the gas chambers. On completion of the task Eichmann escaped to Argentina. Mosad ( Israeli intelligence) captured him, but didn't kill him, as Americans killed Osama bin Laden. The purpose of their mission was a pursuit of justice, not revenge. They brought him to Jerusalem for the open trial. According to Wikipedia "The Israeli government allowed news programs all over the world to broadcast the trial live with few restrictions." Hundreds of witnesses testified before court, 1500 documents had been presented. The evil nature of the Nazi theory and practice had been fully exposed. Eichmann's rights were fully preserved, he was provided with defense lawyers. "Witnesses for the defense, all of them former high-ranking Nazis, were promised immunity and safe conduct from their German and Austrian homes to testify in Jerusalem on Eichmann's behalf.
On May 31, Israeli President Yitzhak Ben-Zvi turned down Eichmann's petition for mercy. On the telegram that Eichmann's wife, Vera, sent in support of the clemency, Ben-Zvi added in his handwriting a passage from the First Book of Samuel: "As your sword bereaved women, so will your mother be bereaved among women." (1 Samuel 15:33)."

Eichmann was hanged on May 31, 1962.

http://en.wikipedia.org/wiki/A...

If American government were treat terrorists in such a way the West would win the war against terror long time ago. Justice should prevail and truth should be revealed. Sensitive information of course shouldn't be exposed even during the open trial to the public. During Eichmann trial some restrictions also had been imposed.

PS. "Open" Trials

Michael Moeller's picture

Leonid,

I know you love platitudes about "open" trials and whatnot, but do you want to know one of the main reasons why the court proceedings are not open to the public? Because sensitive military information is released, and should not be a matter of public record.

Consider the case of the "Blind Sheikh" who was tried in federal court,and once the defense received this information, it ended up in the hands of Osama bin Laden within 10 days. Another case in regular criminal court revealed that we were monitoring the cell phone networks of terrorist organizations, which they promptly stopped using once this was revealed in "open" court. (See, Senate Minority Report, pg 14-15).

So, Leonid, is it your position that the evidence should be an "open" record that affords the enemy sensitive national security information? You've conspicuously avoided this point when uttering platitudes about trials before "the world" and whatnot.

Secondly, please stop this blathering about the "KGB", "Politburo", and "Stalinist Special Counsels". You are not only making things up, but you are sounding ignorant in the process.

Just like the Founding Fathers proscribed, military tribunals have to be authorized by Congress.

Current law even goes well beyond what the Founding Fathers proscribed, which now includes the following: (1) notice of the charges, (2) a hearing before a neutral magistrate, (3) representation by counsel, (4) the ability to offer evidence in their defense and question accusers, (5) supervised access to the government's evidence (because of the release of sensitive national security information), and EVEN (6) an appeal of their status of "enemy combatant" in federal court.

Does that sound like a Soviet show trial to you, Leonid? Come off it, already.

Michael

What IS Your Position...

Michael Moeller's picture

Leonid wrote:

"BTW, even captured pirates had been tried and then hanged."

Yes they did...by military tribunal. NOT some imaginary "open" court proceeding of yours.

George Washington used military tribunals to execute spies and saboteurs, i.e. people who were not military personnel on the battlefield.

Thomas Jefferson said the exact same thing, allowing military tribunals for spies, saboteurs, and the Barbary Pirates, in accordance with the "laws of war".

Again, these were not battlefield combatants, and the Barbary Pirates were not official naval forces, but hired guns. The Founding Fathers granted the president the power to use military tribunals -- not just to "indefinitely detain" them -- but also to execute them.

Same thing happened throughout American history, such as WWII when the president executed Nazi spies by military tribunal. This has been consistent throughout America's history regarding the "laws of war", not just for a marching military, but also for "enemy combatants" committing acts of war against the US, such as spies, saboteurs, and pirates.

So this brings up a few simple questions:

(1) Where do you find support in US history and law for treating foreign enemies committing acts of war against the US being afforded "open" trials in court?

(2) Were the Founding Fathers -- and all the following presidents who did the same -- "un-American" for using military tribunals for execution? Certainly that is a stiffer penalty than "indefinite detention". Were they using "Stalinist Special Counsels", even though they considered such military tribunals perfectly valid under the "laws of nations" and "the laws of war"?

(3) Under US law, what other options are there besides federal court or military tribunals? You are now making up imaginary courts created out of whole cloth.

Michael

Leonid -- "Enemy Combatants"

Michael Moeller's picture

That sentence was a mistake I my part. I've tried to be careful when referring to terrorists, which are "enemy combatants". That is, as I have said before, they are not an official military arm of state, even though they do receive state sponsorship, exactly analogous to the Barbary Pirates. Therefore, the Geneva Conventions do not apply, and they should not be afforded POW privileges.

This means they receive less than POW's, and certainly not "open" trials in some made-up court of yours. I'll have more to say on that in my next post, but it is no different than the Barbary Pirates.

My only point was even if they were considered POW's, the Geneva Conventions allow for "indefinite detention" -- the thing you keep crowing about, as if it was something new and unusual.

You yourself has stated that terrorists shouldn't be afforded the privileges of POW's, but you want to grant them MORE privileges by not allowing "indefinite detention"? That makes no sense.

Leonid wrote:

"This is a common practice in Israel and in other countries affected by terrorism."

You mean like the Mossad carrying out executions without trial? Oh, right.

Michael

Michael

Leonid's picture

What I proposed is written in a simple plain English. See post "I have no problem with this" from today.

If you have a problem with comprehension, this is yours, not my problem. And you definitely defined terrorists as POW's. Would you deny your own words? You wrote "And these are POW's. Al-Qaeda does not operate under a flag, march with a uniform, or appear in traditional "battlefields". If terrorists in your opinion are POW's, then Geneva Convection in accordance with international law is applicable to them.

The whole discussion is about what to do with the captured terrorists, not with those who killed in action. They're already dead. And yes, I'd prefer to see Osama bin Laden captured, standing trial before the whole world, so we could learn the essence and the evil nature of the militant Jihadism from the horse's mouth, so to speak. Then he could be legally executed. BTW, even captured pirates had been tried and then hanged.

They are many options beside civil criminal court-military court, special anti-terrorist court etc... But if terrorists are POW's as you claim, they cannot be tried at all.

As for Founding Fathers, they did nasty things almost from the day one. See Alien and Sedition Acts.

http://en.wikipedia.org/wiki/A...

As usual you are right.

Leonid's picture

As usual you are right. 5 or 4 applications our of 18,761 have been rejected but subsequently granted. That of course makes FISA independent and objective court, not a rubber stamp.

"The legal standard of "probable cause" is the same legal standard of "probable cause" that exists in getting a search warrant for any ordinary crimes "

True again. The only difference between FISA and regular court is that in regular court the suspect can demand a disclosure of this probable cause and contest its validity in the court of law. In case of FISA, the decisions are undisclosed. In fact it can do whatever it pleases. Every democratic country has a secret services but they operate under scrutiny. Even in Soviet Russia KGB had to report to Politburo. FISA's actions are completely undisclosed and unaccountable.

"An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."

http://www.ratical.org/ratvill...

"Other person" without interpretation could also mean the President of United States.

Colorado Sen. Mark Udall and Oregon Sen. Ron Wyden, apparently two useful idiots and islamopoligsts wrote " "We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act," the letter to Attorney General Eric Holder said. "As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows."

http://www.chieftain.com/news/...

So there is an interpretation after all.

More Falsehoods and Ignorance

Michael Moeller's picture

Leonid wrote:

"And Michael wants to grant to the mass killers of civilians a honor of POW reserved to the combatants who fought against armed enemy. He wants to grant to them all the privileges, provided by Geneva Convention."

In fact, I said no such thing. I don't recognize Al-Qaeda et al as falling under the Geneva Conventions. My only point was that even the Geneva Conventions allow for "indefinite detention".

I am saying that it is perfectly valid to kill people like Osama bin Laden on the spot, as they did the Barbary Pirates. Leonid says no, and wants to drag them to some international trial akin to the Nuremburg trials. Talk about justice delayed is justice denied!

First of all, the Nuremburg trials were after the cessation of hostilities, and were an international tribunal.

Does Leonid propose that captured enemy combatants be handed over to some international court? Apparently so, which is totally at odds with American law and tradition.

No, there are two choices for captured enemy combatants: (1) the civilian justice system, or (2) detention and trial by the military. Leonid says he does not favor option (1), which only leaves him with option (2).

I appreciate him supporting my position.

Leonid complains endlessly about "indefinite detention". Yet, the Founding Fathers themselves went beyond "indefinite detention", and allowed execution of enemy combatants.

George Washington himself used "secret" military tribunals to carry out these executions, not an open civilian court that Leonid deems necessary.

By Leonid's logic, George Washington was in favor of and authorized "Stalinist Special Counsels".

Michael

Leonid Back to Making Up Facts

Michael Moeller's picture

Leonid wrote:

"But since FISA court operates away from the public sight and its decisions undisclosed, nobody can say whether or not the court order is supported by any evidence. This is not a court but Stalinist Special Council. As a matter of fact so far no application to FISA has been rejected."

He says no application has been rejected. Wikipedia says otherwise:

"It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four). Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government."

Leonid must have cribbed one of his "sources" again. The numbers above are followed by a table of the increasing court ordered modifications to requests. Notice this increase in rejections and modifications happened after the USA Patriot Act modifications to FISA.

And this is the whole slimy trick of people like Leonid (besides making up facts). They argue for court oversight for everything, including foreign surveillance/searches where US courts have no jurisdiction and other areas not required under ordinary criminal law.

Then when they get it, they accuse the courts of being nothing more than a "rubber stamp". In their desire to undermine national defense, it is quite clear that they will go to any lengths and nothing will ever satisfy them -- at least until national defense is totally toothless.

Leonid wrote:

"Everybody with one eyeball and two braincells can also see that 'Probable cause' needs interpretation and proof. But since FISA court operates away from the public sight and its decisions undisclosed, nobody can say whether or not the court order is supported by any evidence."

This is just plain ignorance. The legal standard of "probable cause" is the same legal standard of "probable cause" that exists in getting a search warrant for any ordinary crimes -- one of the oldest and most litigated legal standards in American jurisprudence.

Again, "probable cause" is not even enough for people like Leonid. He is demanding a higher standard than exists for ordinary criminals.

The reason FISA records are sealed is because they disclose sensitive national security information. Duh! In civilian courts that deal with terror cases, they also have "secrecy orders" so that sensitive national security information is not leaked to the public. In patent law, even, "secrecy orders" are used for inventions involving national defense.

Does Leonid think this sensitive national defense information should be widely available to the public, and thus to the enemy? Apparently so. And if not, then he needs to stop blathering about the "secrecy" of FISA.

Michael

I have no problem with this

Leonid's picture

"He proposes treating the terrorists as pirates and doing unto them what governments have legitimately done unto pirates for centuries. Kill them. Period."

I have no problem with this, as long as they killed BEFORE a capture. As long as they are captured, they have to stand a public trial in order to be executed. Such a trial will reveal who and what they are, what are their purposes and methods and the rest of the world could learn thing or two. Justice should not only be done but also heard and seen. This is a common practice in Israel and in other countries affected by terrorism. Unfortunately, you are wrong about Michael. He proposed to grant to the captured terrorists a status of POW's on the ground that America is in war with terrorism. He support NDAA which makes a provision to keep them in detention indefinitely as POW's. In his post on 26.08. 12 he wrote: "And these are POW's. Al-Qaeda does not operate under a flag, march with a uniform, or appear in traditional "battlefields".

http://www.solopassion.com/nod...

"a honor of POW reserved to the combatants"

Robert's picture

No Leonid, that is manifestly ~not~ what Michael stated.

He proposes treating the terrorists as pirates and doing unto them what governments have legitimately done unto pirates for centuries. Kill them. Period.

Under such a policy, trials are required to establish whether those not caught in the overt act of piracy are guilty of such.

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