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Part Of The Patriot Act Shot Down
jtwJGuevara writes "In a victory today for the ACLU, (and many Slashdotters I presume) the section of the Patriot Act which gives power to the FBI to demand confidential financial records from companies as part of terrorist investigations has been ruled unconstitutional by a U.S. District Judge. Victor Marreo, the District Judge who made this ruling, states that the provision of the Patriot Act in question 'effectively bars or substantially deters any judicial challenge.'"
I know that Kerry wrote some of the "financial crime" parts of the Patriot Act. I wonder if this was his? Does anyone know?
Hopefully on appeal the Supreme Court accepts this case.
More than just that, hope that someone else wins in November and appoints some less conservative individuals to take their seat among the other justices.
I work in an academic library that's also a federal depository. I've had to deal first hand with the implications of this POS raping of our rights
I also live in a city where provisions of this act were (mis)used not to go after terrorists, but after "garden variety" criminals.
In making purchases off of the internet or at a store, I had to pick and choose what I wanted to buy with a CC. Afterall, in the hands of an overzealous prosecutor with an axe to grind, my purchase of the book/film for Lolita and The Tin Drum could be turned into "evidence" of my pedophilla or some other such rot. "Would it play well in Peoria" became my yardstick for all CC purchases. No really. I deal with a government that would inflict such craplaw as the Patriot Act on us with extreme paranoia.
(But, one part of me has a tiny twinge of sorrow at watching this act of justice delayed. It's mightily hard to be fiscally irresponsible when you've switched to a "cash diet" to make all your major purchases. It's going to be a little harder for me to be "good" now.)
OS X:*nix for the real world.
Yes. The difference (I believe) being that they will now need to convince a judge that they need to, and can be held accountable. No "fishing" in other words.
"Ignorance more frequently begets confidence than does knowledge"
- Charles Darwin
There is a fine line to be found between protecting the rights of individuals and protecting the right of the People to be secure. The Patriot Act sought to define the line, giving the Executive more power to track these financial transactions, without scrutiny of the individual being investigated, and with limited oversight.
We need some kind of oversight, because the Executive may abuse the power. Not every executive will be as trustworthy as others in regard to protecting the rights of individuals.
One thing to consider, however, is that with judicial oversight, you can have another form of tyrany, where an overzealous judge prevents an Executive from doing his job to protect the People. We only have an appeals process for this, which hopefully results in a well-reasoned balance of rights. However, as the judicial confirmation process becomes more and more politicized, you can expect more and more partisans being placed in lifetime-tenured posts.
No judge is ever going to rule less power for the Judicial branch. I, for one, do not welcome our judicial overlords. Lex Rex.
There's no time to stop for gas, we're already late.
I believe this indicates a systemic problem - like the grotesque growth of spaghetti code in a legacy application. ("We don't know how the insides work anymore, so we'll keep building wrappers around everything to try and keep it from getting out of control.")
About the only thing I think the founders forgot when they tried to build a system of checks & balances was some kind of automatic expiration process for laws that aren't "maintained" anymore. There should've been some kind of mechanism that would force the legislators to keep reviewing existing laws, and to let them expire if the legislators didn't think it was worth keeping them around. If such a mechanism were required, I bet legislators would be a lot more focused on keeping the legal code "maintainable".
IANAL, but I did read up on this case pretty heavily (the "Under God" one).
The Supreme Court ruled on the case, and overturned the appellate's decision on a technicality. The analysis I read (not my own) was that this could likely be used in another juristiction to force the issue directly to the supreme court on merits. Hence we have the (certainly unconstitutional and probably meaningless) Pledge Protection Act which is supposed to remove the issue of the Pledge from the eye of the court.
Now, it seems to me that this case is certainly going to be one which will go before the Supreme Court just because it is an important legal controversy.
My own opinion (layman) is that the Supreme Court will rule, as they did in case of Hamdi and the Guantamamo Bay detainees, that executive power cannot be removed from judicial oversight. Of course, they could also rule as they did in Padilla that the case was improberly brought before the court and send it back on a technicality. My layman's opinion though with the Padilla case is that Hamdi represents a strong enough precident to essentially challenge the constitutionality of Padilla's classification, so the technicality doesn't really give the government much wiggle room once the Habeus petition is properly filed.
Now to the case in question. Hamdi is of particular importance because in my analysis of how the court will rule (Layman's analysis IANAL, etc) because it exposes deep divisions within the Court with regard to the level of executive and legislative authority allowed within the framework of the War on Terror. In the opinion of the Court, even the fact that Hamdi was detained in the theater of operations of an armed conflict did not deny him the right to at least a minimum due process of law and some form of judicial check under Habeus petitions. Notably, the Opinion of the Court was only endorsed by 4 justices (Kennedy, O'Connor, Rehnquist, and Breyer) though Souter and Ginsberg's dissenting opinion eventually endorses the action of the court but under protest.
4 Justices in two dissenting oppinions in Hamdi actually held that the detention of Hamdi was in fact illegal, and that it was not enough to simply allow him to challenge his "enemy combatant" classification. The opinion of Souter and Ginsberg was that the detention was not properly endorsed by Congress and was therefore illegal. They did not, however, challenge the plurality opinion that Habeus Corpus and due process could be observed by merely giving Hamdi a chance to present an alternative view before the judiciary.
Scalia and Stevens dissented, arguing that *any* detention without charge or trial is a violation of due process and habeus corpus rights and can only be done in the event where Congress suspends Habeus.
Only Thomas suggested that the government should be able detain Hamdi indefinitely without trial.
The decision is available at the Supreme Court's Web site here. This link is included so that other laymen can read the opinions and reach their own conclusions.
If Hamdi is any indication of the court's responses to the question of judicial oversight in the war on terror, it seems that the 8-1 opinion is that the court *must* have strict oversight in such a way as to ensure that the Constitution and rights of the citizens are adequately protected. Of course, it could be vacated on a technicality, but this would still, I think, provide a powerful case for even individuals in other circuits. I don't at this time see the court doing anything differently.
LedgerSMB: Open source Accounting/ERP
I'd say if those who have moral reasons are also democrats (!), then they can abide by the democratic results.
As for those who have religious reasons -- what concern is that of the state? The USA is not a country that can inflict sharia, or any other religiously motivated laws, on its people.
Where's you from, bud?
Perhaps. But I do find it odd that Scalia and Rehnquist both talked a bit about retiring before September 11th and the patent disregard for the Constitution that the Bush Administration showed afterwards. Now I don't hear anything, and I wonder if they are afraid to retire...
LedgerSMB: Open source Accounting/ERP
Jihad; look it up.
How's this?
Note especially this definition:
This term has never been translated by Muslims to mean holy war. Instead, it means to struggle or exert oneself to his or her utmost potential. In Islam, there are two levels of jihad. The greater jihad most often refers to the inner struggle against evil within oneself with the goal of self-improvement for the betterment of one's community and the world as a whole. The lesser jihad refers to the struggle on the battlefield in self-defense if Muslims have been attacked and their right to practice their faith has been aggressively taken away. " Fight in the cause of God against those who fight you, but do not transgress limits. God does not love the transgressors" (Qur'an 2:190). This is an unequivocal statement that only self-defense makes war permissible for Muslims and the goals of war cannot be worldly gain.
Mind you, I agree that a war against "terrorism" is impossible to win, and that addressing injustice in Iraq without addressing injustices we ourselves perpetrate is not going to be especially effective.
But please, don't use that bad definition of jihad, and don't claim that the Islamic world has declared war on us. It's not nearly that simple.
With reasonable men I will reason; with humane men I will plead; but to tyrants I will give no quarter. -- William Lloyd
I'm sorry, but the fact that a law entitled "USA PATRIOT Act" passed the Senate almost unanimously, just 45 days after a major terrorist attack on US soil, with NO discussion or debate, does not strike you as un-democratic?
Thankfully ONE of our senators, Russ Feingold (D-WI), actually has a clue.
Russ Feingold is a co-sponsor of the McCain-Feingold campaign finance reform law. This law blatantly violates the First Amendment by outlawing "issue advocacy" ads within 60 days of a general election. It is truly astounding how some on the left can worship a guy who is doing everything within his considerable power to overturn the Constitution -- in the name of that very Constitution no less!
I watch Brit Hume on Fox News
President Bush routinely tacks the following paragraph onto the end of almost every executive order, to attempt to evade judicial oversight of that order.
- This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity
by any party against the United States, its departments, agencies,
entities, officers, employees or agents, or any other person.
That appears at the end of every executive order issued this year, except the ones raising pay for senior politically appointed officials. Other presidents would do this occasionally for minor administrative matters, but Bush does it every time.