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The Continuing Hunt for PATRIOT Act Abuses
Throtex writes "Orin Kerr, Associate Professor of Law at George Washington University writes at The Volokh Conspiracy that the Department of Justice is having trouble finding abuses of the USA PATRIOT Act. This follows from the fact that what the media originally aired as abuses were merely allegations of abuse at the time. Could it be that there has just been a lot of fuss over nothing?"
Guantanamo is outside of the US, so it's not officially under US juridiction. So it's not illegal to detain these people there even if it's indeed a concentration camp for deported war prisoner, except that the Geneva Convention is not respected there.
Trolling using another account since 2005.
Because no abuses are being found. That is a danger sign.
I was an investigative journalist ten years ago. I investigated a psychiatric hospital, where there were continual 'rumours' of patient abuse at the hands of staff. The management told me that there had been no complaints. What it turned out that mean was that there had been 600 complaints, but none of them had been upheld. The investigation consisted of the management asking patients and staff what happened. The staff denied the abuse and their word was taken as truth, because the inmates were mental patients and therefore could not be believed.
After my piece aired, there was a year-long public inquiry into conditions at the hospital and wholescale reform.
Whenever someone tells you 'there is no abuse', worry. If there is scope for abuse, it WILL happen.
I'm not wrong. You haven't thought about it hard enough.
Considering that major provisions involve secrecy and nondisclosure of disclosure, how does the DoJ expect people to complain of abuses? By definition the surveillance targets don't generally know anything has happened.
Except the detentions at Camp X-Ray, regardless of one's opinion about them, have nothing to do with the PATRIOT Act. The PATRIOT Act has to do with domestic anti-terrorism, not the treatment of detainees obtained in military operations.
That being said, there have been some questionable uses of PATRIOT Act provisions for non-terrorism cases that should be investigated. The PATRIOT Act is an anti-terrorism act, and if the Justice Department wishes such powers for conventional cases they should go through the legislative process to get them. The PATRIOT Act should be limited to use only in anti-terrorism prosecutions.
Article 4. Section 2.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
Jeremy
Wen Ho Lee, Mazen Al-Najjar, and Allah knows who else, happened during the Clinton/Reno era, so they don't count (since we can't blame their cases on Bush, Ashcroft, and the PATRIOT Act).
Guantanamo is outside of the US, so it's not officially under US juridiction.
That is certainly the position of the Bush administration. I'm pretty sure, however, that it has been rejected by the courts. (Thus the ruling that the detainees at Gitmo must have some form of access to the U.S. court system to determine whether they really are "enemy combatants.")
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
I thought the only American Citizens there were military
You are misinformed. Jose Padilla, born in New York, raised in Chicago, is an enemy combatant. Yaser Hamdi, born in Louisiana, is an enemy combatant. Both were being detained in Guantanamo Bay last I heard.
http://www.bushpresident2004.com/ashcroft.htm
From the article:
In the Spring of 2003, Ashcroft's PROTECT Act was signed into law limiting judges' discretion in sentencing criminal offenders below the Justice Department's sentencing guidelines. While each individual case carries with it countless unique circumstances that a judge uses to form a fair and appropriate sentence, John Ashcroft acted bravely to prohibit judges from considering the individuality of cases for fear of being black-listed by the Justice Department.
This caused uproar among judges across the nation including conservative Supreme Court Chief Justice William Rehnquist. Members of Congress inspired by Ashcroft's success are proposing the VICTORY Act to employ tactics similar to the Patriot Act on suspected drug offenders.
The Bill of Rights Amendments specifically affected by the Patriot Act and other Bush Administration efforts are the following:
The First Amendment: The Patriot Act allows the search of libraries' and religious organizations' records without cause. This might infringe upon the First Amendment's declaration that the government may not abridge freedom of speech nor prohibit the "free exercise" of religion.
The Fourth Amendment: The Patriot Act allows searches and seizures of U.S. citizen's property without probable cause and without a specific warrant. This is expressly prohibited by the Fourth Amendment.
The Fifth Amendment: The Bush Administration claims it may designate Americans as "enemy combatants" and detain them without conviction in court. This is in direct violation of the Fifth Amendment stating that persons may not be "deprived of life, liberty, or property, without due process of law." The Supreme Court has regularly upheld the "due process" requirement even in national security crises.
The Sixth Amendment: With the claim to designate Americans "enemy combatants", the Bush Administration also states that it may imprison persons indefinitely without trial, without access to an attorney, and without any means to challenge their detention. The entire Sixth Amendment is essentially shredded in this case.
[End of quoted article]
I don't think that's a lot of fuss about nothing. I can think of several abuses already, including Jose Padilla, who has been held for years now and has never been charged with anything. He's a goddamn US citizen for chrissakes. If you don't think that's scary that the Feds can come lock you up in a military brig indefinitely without charging you with any crime, then you need to pull your head out of the sand and take a look at what's going on around you.
"When the president does it, that means it's not illegal." - Richard M. Nixon
Hmm, aren't the prisoners held in Guitmo in US war prisons and as such on US "soil." Sort of like our embassys in other countries considered on US soil.
Let me correct a couple of facts for you:
We're not at war. Only Congress can declare war, and they have not.
Guantanamo does not fall under US jurisdiction.
The prisoners held in Guantanamo are mostly "enemy combantants", and no "prisoners of war."
It allows for peoples' civil rights to be violated. If you think that's cool, then fine.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
The one clear Patriot Act abuse I am aware of is the issue with Steven Kurtz whose genetically engineered artwork is considered in violation of the Patriot Act Sec. 817: Expansion of the Biological Weapons Statue.
You can read more about this case here.
In plain English, this means that if the FBI raids your info, you are not allowed to talk about it to anyone else, much less file a public complaint.
Tackhead, do you like apple cheeks? They got your number. How do you like THEM apple cheeks?
The Law of the Excluded Middle says that a prisoner is either military or non-military. Military prisoners are subject to theterms of the Geneva Convention. Non-military prisoners are subject to civilian courts. Anything else is smoke-and-mirrors created to hide either war crimes or gross violations of justice.
The ACLU has NEVER stated that the entire Patriot Act was wrong or bad. There's so much crap in there that it would be near impossible for them to not agree with at least some of it. The problem is that the 10% of it they don't like, THEY REALLY REALLY don't like. So arguing that they are ok with 90% of it is really no argument at all.
The ACLU even has a video where they say they don't disagree with the entire patriot act (this video is typically given free to new members of the ACLU). The same video also documents abuses of the patriot act that the government, surprise surprise, can't seem to find.
Any man who afflicts the human race with ideas must be prepared to see them misunderstood. -- H. L. Mencken
Here's specific for you: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID =12263&c=206
It's a rather lovely summary of surveillance issues in the Patriot Act.
Any man who afflicts the human race with ideas must be prepared to see them misunderstood. -- H. L. Mencken
The Taliban were the government of Afghanistan, to some degree previously supported by the U.S. Before the U.S. declared them terrorist sympathizers for failing to produce Bin Laden at the U.S.'s request (certainly a cultural impossibility, quite probably a physical one as well) and backed the rebel Northern Alliance, people had a legitimate right to go there to support that government's fight against rebels - or to study Islam, or to engage in humanitarian actions.
We don't know the circumstances under which these people were captured, what they were doing there. If basic principles of law and justice were followed, those accused of being accessories to terrorist acts of murder would have fair trials at which facts could be determined.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
Just a correction, re-read the post you're responding to - in 1943, Japan had as many nukes as everybody else, because /nobody had nukes/. America nuked Hiroshima in 1945.
You can run but you can't hide, except, apparently, along the Afghan-Pakistani border.
The Patriot Act is overkill for the losers the Administration is catching with it.
(emphasis mine)
It appears that the State gets to decide when to give them rights, but is obligated to give them their Geneva Convention rights, regardless of whether they're lawful soliders of a signatory nation.
I'd encourage you to look over the ACLU's (admitedly biased, but generally accurate) page on the expanded surviellance powers available to law enforcement under the PATRIOT act.
I have. As I noted, they are deceptive. I asked you to give an example, not to link to propaganda. I maintain the fact that, contrary to your implication, courts are required for warrants under the PATRIOT Act, just as before. If you disagree, you can point to some fact that shows me to be wrong, such as a quote from the bill itself.
I'll humor you with an example: They write, "The requirements for getting a PR/TT warrant are essentially non-existent: the FBI need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge - without having to prove it - that such a warrant would be 'relevant' to an ongoing criminal investigation. And the judge does not even have the authority to reject the application." This is, perhaps, what you were referring to when you implied that a judge's approval was not needed for a warrant.
But it is actually incorrect. They are simply lying when they say a judge does not have the authority to reject it. It is not true. What *is* true is that the scope of the warrant is increased, so that if one judge says no, that another judge elsewhere might say yes. They are lying by stating that the judge cannot reject the warrant. What is true is that the judge cannot by himself prevent another judge from approving it, but that is a very different thing from what is said and implied.
As you can see, I have done my homework on this, so simply showing me a link to a bunch of biased claims is not sufficient.
Again, I refer you to the Channel 4 programmes. (If you Google for 'guantanamo channel.4', the first several links mention the series, including Channel 4's own set of pages.)
One programme, 'The Guantanamo Guidebook', attempted to reproduce some of the interrogation methods used there. These include sleep deprivation, extremes of heat and cold (hypothermia), verbal abuse, enforced nudity, shaving and sexual humiliation, bombardment with bright lights and loud music, sensory deprivation, and being forced to hold stressful positions for hours, &c. In combination. While carefully crafted to fall short of the legal definition of 'torture', it certainly sounds like torture to me. (See some of those sites for reports by the programme's volunteers who submitted to it. They're shocking.)
Another, 'Is Torture A Good Idea?' was made by a lawyer who represented some of the Guantanamo detainees. Among other things, he looks at how the methods used there led to confessions that were completely and demonstrably false. I don't expect that all the detainees are innocent, but some certainly are. And without due process, how can you tell?
Ceterum censeo subscriptionem esse delendam.
Librarians are opposed to the Patriot Act because they know what the FBI will do given an inch. American librarians successfully fought off the FBI in the 1970s, when it wanted to peek at library records to determine who was reading subsversive materials. In the 1990s, I personally witnessed FBI personnel violate patron privacy in a library with the help of library staff who were not librarians versed in the principles of patron privacy. Just because there aren't any public incidents, don't assume that the FBI isn't using the Patriot Act to intimidate librarians. The FBI has done it before, they will do it again, and they are probably doing it now.
I think you need to do some research. Let's start with Article 1, Section 2:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
How about Article 1, Section 3:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Or maybe Article 2, Section 1:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
I don't know about you, but it almost seems to me like the founding father thought that we would be citizens of the United States.
Between september 11th 2001 and April 2003 I flew within the US 13 times and I was "randomly" selected to be searched 11 of those 13 times. I believe this is on account of my religion. In 3 of the searches my personal property, was damaged and no apology offerred. In 4 cases I missed my flight.
So what happenned in April 2003. I packed up and left the US. Which I think was the agenda of the PATRIOT act authors anyway.
Here's a basic list of just a handful of abuses I came up:
And finally, maybe there haven't been as many abuses as there will be once all 2nd legal track the preparations are in place.
Please note that the identical AC post in this story was me, but I accidentally posted it as AC the first time.
Here's a basic list of just a handful of abuses I came up:
And finally, maybe there haven't been as many abuses as there will be once all 2nd legal track the preparations are in place.
---
From the site "Professors not opposed to Academic Fraud and Terrorism: One hundred and ninety-nine faculty members at the University of Colorado at Boulder dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill."
The article post is a lot of fuss over nothing, and here's why; I believe nothing on this highly partisan, truly tashy site that publishes junk such as the above is worth reading.
Or you could realize that it's a quote from the end of the movie "Sneakers".
Kierthos
Mr. Hu is not a ninja.
does it matter if the FBI can ask every single judge in the US until it finds a republican judge and gets it approved?
If you wish to have an informed and intelligent discussion about the law, then it matters to describe the law accurately, yes.
And your assertion that "republican" judges are more likely to be favorable to this sort of warrant is quite naive. These are civil rights issues where the far left and right agree with each other, and disagree with the moderates. That is, should it go to the Supreme Court, Scalia is more likely to agree with Stevens, and to disagree with Kennedy and Souter.
Well, lets look at costs, shall we? Here's a random study - Kansas. Emphasis mine.
Conclusions
The estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million). Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000).
Items:
The investigation costs for death-sentence cases were about 3 times greater than for non-death cases.
The trial costs for death cases were about 16 times greater than for non-death cases ($508,000 per death case; $32,000 per non-death case).
The appeal costs for death cases were about 21 times greater.
The costs of carrying out a death sentence (including death row incarceration) were about half the costs of carrying out a non-death sentence in a comparable case.
Trials involving a death sentence averaged 34 days, including jury selection; non-death trials averaged about 9 days.
For death sentence cases, the pre-trial and trial level costs were the most expensive parts: 49% of the total costs. The costs of appeals were 29% of the total, and incarceration and execution costs accounted for the remaining 22% of the total.
P.S. - I agree with the GP; however, I wasn't commenting on my personal views (which are, in fact, that the purpose of our judicial system is prevention, not retribution). I was just trying to bring facts into the discussion, and the facts are that the death penalty states have *higher* murder rates. If one believes that the purpose should be retribution - well, that's your opinion, and if it is your opinion, then believing in the death penalty, despite the clear lack of a preventative effect, is a good choice for you.
Pinkypants -- my favorite!
people captured on the battlefield engaged in some kind of resistance or another.
Like resisting an invading army.
They were foreign nationals committing organized acts of war against the US
It is increadibly how widely varied the definition of "acts of war" can be.
There's no need for a trial, there's no need for Geneva Conventions
This speaks for itself.
We have to have some way of protecting ourselves against things like this. Why wouldn't we throw these people in the can and forget about them? Who cares about civil rights?
I'm pretty sure Hittler spoke words like that.
They don't operate under our Constitution (...) I just don't see any problem with this whole thing. Can someone explain it to me?
Sure. YOU should operate under your own constitution. And all the international papers you signed in the past.
morcego
The majority of Americans elected Bush, therefore the majority of Americans agree to his politics
60% of eligable voters voted. 50% of those voted for Bush. Therefore it's better stated that about 30% of Americans voted for Bush.
So do the other 70% deserve Bush? Probably, since more could have voted themselves. But also realize more people voted for Kerry than JFK or Clinton, two of the most popular US presidents of all time. I'm happy to say I'm from NYC where 86% voted against Bush. (Side note: If the place hit hardest by terrorism in recent years voted so strongly against Bush then how good a job can he be doing?)
Personally I think most of the other 40% of the electorate was sick of so much meaningless banter, lack of ideas, and boring speeches. We need someone with more passion and dedication to a core set of ideas instead of someone who only listens to a room full of advisors and corporate sponsors.
Developers: We can use your help.
Any, however faint, trace of that being even close to reality? Because it looks like a classic FUD to me.
Congress enacted USAPATRIOT because they were told it was just a modification and update of existing statutes.
Since then, as more information has come in, Alaska Republican Don Young has said "Everybody voted for it [the PATRIOT Act] but it was stupid, it was what you call 'emotional voting'...because we didn't follow it through, we didn't study it. I say it's the worst piece of legislation we've ever passed."
Congress didn't have time to read and analyze the whole thing. If they had, they might have noticed that without a judge's approval the authorities can show a "National Security Letter" to your bank, your library, or your psychiatrist and force them to turn over records without giving you a chance to contest the search. That's section 215.
It is provisions such as that which led Bob Barr to say "We can't say we'll let government have these unconstitutional powers in the Patriot Act because they will never use them. Besides, who knows how many times the government has used them? They're secret searches."
Newt Gingrich's comment "I strongly believe Congress must act now to rein in the Patriot Act" was aimed more at the abuse of USAPATRIOT for non-terrorism-related investigations.
Idaho Republican "Butch" Otter has tried to block section 213, which provides for secret searches.
Even the chairman of the House Judiciary Committee can't get straight information about how the new powers are being used. Sensenbrenner said ""I can't answer that because the Justice Department has classified as top-secret most of what it's doing under the Patriot Act. The burden will be on the Justice Department and whomever is attorney general at that time to convince Congress and the president to extend the Patriot Act or modify it. But because of the fact that everything has been classified as top-secret, the public debate is centering on (the act's) onerousness."
If you want to defend USAPATRIOT from unfair criticism, you can point out that people are blaming it for completely separate problems. The "enemy combatant" doctrine under which people are locked away without charges or public evidence is distinct from USAPATRIOT. Ditto the prosecution of Brett Bursey for holding a "No War For Oil" sign, and Homeland Security agents being sent to arrest Texas Democrats.
Even that won't help always. Better hope these guys get hold of your case then. And make sure they make DNA testing - approximately 25 percent of post-conviction DNA tests done by the FBI do not produce a match.
Lars T.
To the guy who modded me down from perfect to terrible Karma - Apple haters still suck
It seems to me you are making a distinction without a difference
Well, you're wrong.
Nope, the court will decide like they always do. The democrats on one side, the republicans on the other.
You do know that of the four "liberal" justices on the Court, two were appointed by Republicans? It's not about party. It's more about left and right than Republican and Democrat. Stevens is one of the two most liberal justices, and he was appointed by a Republican.
And there are many examples of civil liberties cases where Scalia sided with Stevens and Ginsburg. One example was the case a few years ago, Apprendi v. New Jersey, where Scalia joined Stevens, along with Souter, Ginsburg, and Thomas, in upholding that a fact that increases sentencing beyond the statutory maximum must come before the jury. Rehnquist, O'Connor, and Breyer dissented.
Last year in Hamdi v. Rumsfeld, Scalia joined Stevens again in saying the President can only charge Hamdi and release him, he cannot authorize detainment of a U.S. citizen.
This is fairly common, as people who actually watch the court know. Civil liberties cases sometimes invert the court, so that it is the far right and left versus the moderates, instead of in most other cases, where it is the left versus the right.
The abaility to request info from librarians existed before the patriot act, that law just extended it to terrorist activities. Also as of last year all requests for library info had happened under other laws not the patriot act.