Patriot Act - This should make for a good fight

[NousDefionsDoc]

It seems to me that all the Patriot Act did (in terms of real impact on individual rights) was place into law things that were already being done through regulation or executive order. Does that make these things right? Nope, and the IRS and their screwed up way of dealing with problems is a perfect example (IRS says you owe taxes, you disagree. They freeze/sieze your assets, bank accounts, etc. Now, you can't afford to fight them in court because your assets are frozen, even if they are dead wrong).

Right

Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

Right

[Roguish Lawyer]

Originally posted by DanUCSB
Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

There's only two ways it can go. If they were good laws, people wouldn't have to use that argument. If they're bad laws, then the argument is a shoddy excuse... it's like a cop sticking a gun to your head, and then saying, 'Trust me. I know you didn't do anything, but this is just in case you do. I haven't done anything wrong, because I haven't used this pistol yet, so don't complain!'

Do you want to throw out the baby with the bathwater? The issue is reauthorization of the Patriot Act. Should none of it be reauthorized because certain provisions -- which never have been used -- arguably are objectionable?

Plus, I'm not seeing anyone establishing that any provision of the Act is objectionable in any respect. When the country is at war, civil liberties have to take a back seat to some degree.

[NousDefionsDoc]

When the country is at war, civil liberties have to take a back seat to some degree.

Mmmm, do you have any idea how long this war has been going on and how much longer it will last?

By my reckoning, we've got 21 years hard in it already. Beruit Barracks bombing is my official start date.

Better be ready to put your civil liberties in the backseat for at least the rest of your lifetime.

[The Reaper]

Originally posted by Roguish Lawyer
When the country is at war, civil liberties have to take a back seat to some degree.

Ooh, what is next, suspension of the writ of habeus corpus? Repeal of Posse Comitatus? Martial law?

Sounds like Lincoln politics to me.

Whatever happened to Franklin's "Those who would trade their liberties for a little safety deserve neither liberty nor safety"?

You turning in your Federalist Society card?

TR

[DanUCSB]

Originally posted by Roguish Lawyer
Do you want to throw out the baby with the bathwater?

There is no baby in the bathwater. Your compadre-in-arms ROTCNY himself said it: all the so-called 'successes' of the PATRIOT Act are things that could have been done under pre-existing law, had it been adequately enforced. Where's the baby?

Originally posted by Roguish Lawyer
When the country is at war, civil liberties have to take a back seat to some degree.

That's the problem. I fully support our actions around the globe, but they should not be termed a 'war.' Why? Because by doing so, you're getting the best of both worlds... which our Founding Fathers sought to restrict. It's like the War on Drugs, or War on Poverty, or whatever. Calling it a war allows you to do all sorts of things you wouldn't normally get to (like, ahem, putting the back seat to civil liberties, as you promote) with none of the responsibilities (understandable end-states, conditions at which this curtailment of civil liberties will end). Saying that you will curtail civil liberties temporarily because we're at war on terror is nothing short of saying that we're curtailing those libertiers forever, because no matter -what- we do, there will always be a lone nutjob out there that will commit a 'terroristic' act that someone will twist into being a so-called threat to national security.

This is not to say that I disparage anything we're doing overseas right now; I don't. I'm just saying, don't let the words 'war' and 'terror' confuse us into losing our own liberties at home while our soldiers are fighting for those same liberties overseas.

[NousDefionsDoc]

Well Dan, you have become my favorite new college boy. You seem to have this well in hand.

'Night



LOL - "How do those SF guys always win hearts and minds and get other people to fight for them? Doesn't seem fair."


KICK THEIR ASS Dan!

[NousDefionsDoc]

Here's another can of ammo for you Dan.

I need a little help here because I'm not very bright. Who has to authorize search warrants and such and determine wether the probable cause was probable? Oh that's right, judges isn't it?

Tuesday, June 1, 2004 11:04 p.m. EDT
Same Judge OK'ed Muslim Prayer


The same San Francisco federal judge who just overturned a federal law banning partial-birth abortions also approved of Muslim prayer in schools when federal rulings ban all other denominational prayers and activities.


In a December 2003 decision, U.S. District Judge Phyllis Hamilton decided that it was lawful for a California middle school teacher to require students to recite Muslim prayers, get down on their knees and role-play as Muslim adherents.

As part of the class students were told to recite: "In the name of Allah, the Compassionate, the Merciful. Praise be to Allah, Lord of Creation, The Compassionate, the Merciful, King of Judgment-day! You alone we worship, and to You alone we pray for help, Guide us to the straight path."


The Byron County 7th-grade world history teacher was sued by the parents of one of the students, who claimed that their child had been coerced to engage in a religious practice.

Hamilton, in a summary judgment, ruled that the teacher's actions were legal.

The teacher prepared a student guide which said that as part of the study of Islam "you and your classmates will become Muslims."

According to court documents, the teacher also read the Koran and Muslim prayers out loud in class and required students to recite lines of Muslim prayers in class as well.

Students also were told to recite Islamic prayers as they exited the class, including the Muslim refrain "In the name of God, most merciful, most gracious."

The teacher also assigned students to fast or give up something like TV for a day to experience Islam's month of Ramadan and one of its pillars of faith.

At the end of their Islamic studies, students also were required to write an essay on Islam. But, but the teacher instructed her students, "BE CAREFUL HERE – If you don't have something positive to say, don't say anything!!!"

In her ruling, Judge Hamilton threw out the parents' case, saying the religious role-playing was not tantamount to the exercise of religion and the school activities were not of a devotional or religious nature.

[NousDefionsDoc]

http://www.blessedcause.org/Indoctri...ntyShocker.htm

Judge Phyllis is a Clinton appointee.

[NousDefionsDoc]

http://www.truthorfiction.com/rumors/b/byronislam.htm

In the interest of fair play.

[ROTCNY]

There is no baby in the bathwater. Your compadre-in-arms ROTCNY himself said it: all the so-called 'successes' of the PATRIOT Act are things that could have been done under pre-existing law, had it been adequately enforced. Where's the baby?

That's a mischaracterization of what I said. All the successes of the PATACT could NOT have been done under existing law.

One example...PATACT allows intelligence sharing and law enforcement cooperation that was previously denied. For the first time ever, the CIA/NSA/FBI/Other Govt. Agencies are sharing 80% of the intelligence they have as opposed to how they used to withold that same amount before 9/11.

What i'm saying about sec. 412 is that the fury surrounding it and many other controversial provisions is unwarranted because they have never been utilized nor have their been any reports of Govt. abuse.

Every law in this country is open to government abuse. Even eavesdropping laws before 9/11 could've been used to infringe on the rights of citizens. However, there is an inherent trust in the government to do the right thing and protect the interests of the people. We ensure that this trust is kept by making records public, congressional oversight and by voting out of office those represenatives/presidents/senators/etc that we feel have betrayed the public trust.

An executive branch of government less inclined to observe the privacy of citizens could in fact abuse certain provisions of PATACT or another law, but there will be consequences for those actions.

We don't have to fear the loss of liberty and freedom until the majority of average citizens do as well by becoming complacent. The first test of whether or not the American people agree with this administration's record concerning preservation of privacy/liberty/freedom will be at the polls in November.

^Or so my College Professors say....

Summary of my thoughts so I don't have to post again:

The detractors of the PATACT are mainly complaining about the POTENTIAL for abuse as opposed to any single example of ACTUAL abuse committed by the US Govt. since it was passed.

In all laws, there are ALWAYS potential ways to abuse them. What matters most is the intent of those executing the law.

[Airbornelawyer]

Originally posted by DanUCSB
Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

I agree with your statement. However, it does not reflect the argument made.

Certain provisions of the USA PATRIOT Act may be "controversial," as ROTCNY said, but that is not the same as saying it is a bad law. Noting that they have not been applied is intended to expose the hypocrisy of people like Gore and the ALA who claim the darkness has descended already. This is a separate issue from whether, if applied, these provisions are "good" or "bad" laws.

Section 215 of the Act is notorious, for example, because it supposedly will allow the government to snoop on your library records or porn movie rentals. Worse, they don't even need probable cause.

Guess what? Before the USA PATRIOT Act, the government didn't need probable cause to subpoena business records. Federal Rule of Criminal Procedure 17(c): "A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."

No mention of probable cause.

For a subpoena in the trial context, the Government must establish the relevancy, admissibility, and specificity of the information sought (U.S. v. Nixon, 418 U.S. 683 (1974)).

For a grand jury subpoena, the requirement is far less stringent. Probable cause is specifically ruled out as a standard. The Supreme Court held unanimously in US v. R. Enterprises, Inc., 498 U.S. 292 (1991), that "the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." The Fourth Amendment exclusionary rule and the hearsay rule in the Federal Rules of Evidence also don't apply in grand juries.

Section 215 of the Act extended this power to subpoena records to the FISA Court. It requires the FBI to make an application to the court for an order to produce records.

Although I say "extended this power," prior to the PATRIOT Act it was not clear what the requirements were for such a request. As noted, in contexts such as a grand jury, the warrant/probable cause requirement under the Fourth Amendment doesn't apply. In trials, the Nixon test did require a demonstration of relevance and admissibility (and given the exclusionary rule, this would imply probable cause in most cases), but this doesn't apply to grand juries.

The previous "standard", if any, was Executive Order 12333 (1981), which delegated to the Attorney General "the power to approve the use for intelligence purposes,..., of any technique for which a warrant would be required if undertaken for law enforcement purposes." This extended to intelligence investigations the tools of criminal investigations, with the same restrictions. The main thing this provision of EO 12333 did was allow search warrants to be issued for intelligence surveillance. But EO 12333 is silent on whether intelligence investigations could use the techniques of law enforcement not subject to the warrant requirement. The provision could be read either way. Section 215 in substance does little more than clear up this issue in favor of giving the FISA court roughly the latitude a grand jury has.

Another "notorious" aspect of Section 215 is its secrecy requirement: "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." Besides being perhaps a prudent measure in a terrorism investigation, the secrecy rule also mirrors grand jury rules - Federal Rule of Criminal Procedure 6(e) imposes secrecy requirements on grand juries.

[Airbornelawyer]

Regarding Section 412, this is what Gore said: "Under the Patriot Act, Muslims, innocent of any crime, were picked up, often physically abused, and held incommunicado indefinitely. What happened in Abu Ghraib was difference not of kind, but of degree."

1. As noted, no one has been detained under 412.

2. Even under 412, no one can be held incommunicado indefinitely.

3. I know there are some controversial provisions of the PATRIOT Act, but I don't recall any permitting physical abuse.

4. Pre- and post-Act, detention was permitted of deportable aliens. "Innocen[ce] of any crime" is not the legal standard.

[Airbornelawyer]

Originally posted by NousDefionsDoc
What's the criteria for being designated a terrorist?

A "terrorist" is one who commits or conspires to commit an act of terrorism.

Under federal law, an "act of terrorism" (1) is an act that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, and (2) is a violation of one of the following laws:

• 18 USC 32 (destruction of aircraft or aircraft facilities)
• 18 USC 37 (violence at international airports),
• 18 USC 81 (arson within special maritime and territorial jurisdiction)
• 18 USC 175 or 175b (biological weapons)
• 18 USC 229 (chemical weapons)
• 18 USC 351 (a), (b), (c), or (d) (congressional, cabinet, and Supreme Court assassination and kidnaping)
• 18 USC 831 (nuclear materials)
• 18 USC 842(m) or (n) (certain acts involving plastic explosives that do not contain a detection agent)
• 18 USC 844(f)(2) or (3) (arson and bombing of Government property risking or causing death)
• 18 USC 844(i) (arson and bombing of property used in interstate commerce)
• 18 USC 930(c) (killing or attempted killing during an attack on a Federal facility with a dangerous weapon)
• 18 USC 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)
• 18 USC 1030(a)(1) (espionage by computer)
• 18 USC 1030(a)(5)(A)(i) (hacking or using computer viruses), resulting in damage as defined in 18 USC 1030(a)(5)(B)(ii)-(v) (death, injuries, threats to public health, violations of national security)
• 18 USC 1114 (killing or attempted killing of officers and employees of the United States)
• 18 USC 1116 (murder or manslaughter of foreign officials, official guests, or internationally protected persons)
• 18 USC 1203 (hostage taking)
• 18 USC 1362 (destruction of communication lines, stations, or systems)
• 18 USC 1363 (injury to buildings or property within special maritime and territorial jurisdiction of the United States)
• 18 USC 1366(a) (destruction of an energy facility)
• 18 USC 1751(a), (b), (c), or (d) (Presidential and Presidential staff assassination and kidnaping)
• 18 USC 1992 (wrecking trains)
• 18 USC 1993 (terrorist attacks and other acts of violence against mass transportation systems)
• 18 USC 2155 (destruction of national defense materials, premises, or utilities)
• 18 USC 2280 (violence against maritime navigation)
• 18 USC 2281 (violence against maritime fixed platforms)
• 18 USC 2332 (certain homicides and other violence against U.S. nationals occurring outside of the U.S.)
• 18 USC 2332a (use of weapons of mass destruction)
• 18 USC 2332b (acts of terrorism transcending national boundaries)
• 18 USC 2339 (harboring terrorists)
• 18 USC 2339A (providing material support to terrorists)
• 18 USC 2339B (providing material support to terrorist organizations)
• 18 USC 2340A (torture)
• 42 USC 2284 (sabotage of nuclear facilities or fuel)
• 49 USC 46502 (aircraft piracy)
• 2nd sentence of 49 USC 46504 (assault on a flight crew with a dangerous weapon)
• 49 USC 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft)
• 49 USC 46506 (application of certain criminal laws to acts on aircraft) if homicide or attempted homicide is involved
• 49 USC 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility)

This is a long list of offenses, but it is important to remember that both elements of intent must be satisfied. The crimes covered on the list each have their own intent requirements, and you also have to have committed them with the intent to intimidate or coerce the government (this the main terrorist crimes statute; there are other statutes that govern other acts of international or domestic terrorism where the definition is generally the same, but cover acts to intimidate or coerce the civilian population, and not just the government).

Two other relevant crimes are "Harboring or concealing terrorists" and "Providing material support to terrorists." Not all of the crimes on the above list are covered in these offenses (for example, the computer crimes are not covered by the providing material support statute). Both of these require that you act knowing the person you are helping is doing, will do or has done the crime.

Another relevant crime is "providing material support or resources to designated foreign terrorist organizations." The definition of foreign terrorist organization applicable here is found in the Immigration and Nationality Act, at 8 USC 1189.

Under that law, a "foreign terrorist organization" is one so designated by the Secretary of State using the following criteria: the organization is a foreign organization that engages in terrorist activity or terrorism (or retains the capability and intent to engage in terrorist activity or terrorism) which threatens the security of US nationals or the national security of the US. That just takes you to two more definitions - "terrorist activity" and "terrorism" - in other sections of the US Code.

• "Terrorist activity" (8 USC 1182(a)(3)(B)) - any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following: (1) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle), (2) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained, (3) A violent attack upon an internationally protected person or upon the liberty of such a person, (4) an assassination, (5) the use of any (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property, (6) a threat, attempt, or conspiracy to do any of the foregoing.
  
• "Terrorism" (22 USC 2656f(d)(2)) - premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.

[Sigi]

Originally posted by NousDefionsDoc
Well, having been a victim of the un-justice system several times:

Probable cause is a joke. No one is clean enough to not have probable cause, especially when driving.

The FBI can't even keep track of their own guns and computers, and we're going to trust them?

Following AL is suicide. LOL

I have to agree with NDD here.

Not only do I NOT trust lawyers, I don't trust people who explain what lawyers say. (Ok, RL and AL aside.)

[Sigi]

In her ruling, Judge Hamilton threw out the parents' case, saying the religious role-playing was not tantamount to the exercise of religion and the school activities were not of a devotional or religious nature

Funny, but I wonder what the traditional Jewish/Christian/Catholic role playing activities would have "exercised" in the courts mind.

Most likely the court would have said that religion stifles school activities if it is the Christian variety. Just another "Bench Legislation" I see every day, in every State.