Does a community have a right to protect itself from being harmed?
Indeed. And the most grevious harm that can be done to a community through speech is the repression of any of it. Only if all people are free to speak their minds on all topics, without prior restraint or fear of governmental retribution, is a nation free. The lesson drawn from history is that any restraint of speech based on content, no matter how well-intentioned, is corrosive to the freedom of the people involved.
The belief in absolute free speech, even for nazis, is not fundamental at all, in fact only America has these laws.
Not entirely true -- Canada has similar guarantees, as does Australia, I believe -- but the poster is right on one count: Only in the United States has this ptinciple been raised to an absolute. Through either foresight or a beneficial quirk of history, in the States, this right is enshrined in the First Amendment: with connotations not just of "earliest" but also "primary".
Its interesting that in the good old US of A slander and talking about trade secrets, which are both designed to protect the rich elite, are considered a crime, whilst advocating the repression and murder of jews, blacks, and other minorities is "free speech".
The trade secret laws deal with speech not as speech but as theft of property. One can argue that ideas cannot be property -- I do -- but the restraint of discussion of trade secrets is not based on the content of the secrets but on the fact of their secrecy (and economic worth). That's why it's legal to distrubte trade "secrets" that are publicly available elsewhere.
Likewise the laws on slander deal not with the content of the slander but on the veracity. Uniquely in the United States (I believe), winning a slander or libel case requires demonstration that the statement made was untrue, not merely that it was "harmful". That bar is much higher than in any other nation in the world. Why? Because courts have ruled that slander and libel suits all too easily chill the exercise of free speech, and that the nation has an interest in protecting the dessimination of true information. Informtation that is demonstrably untrue has less social value and can be actionable... but the presumption is, more discussion is better.
Here's a lesson too often left unlearned in "free" countires (sadly, including too much of the USA): Freedom is hard. That's why it's so rare in hisotry. Freedom means putting up with people with whom you disagree, people who set your teeth on edge, people who violate your most cherished beliefs. Freedom means offering to others all the rights you expect for yourself, and more. Freedom means allowing the possibility, no matter how remote, that you are wrong on something. Further, it means accepting that even if you are right and someone else is wrong, that person has the right to live his/her life as he/she sees fit.
Popular causes need no protection. Majority opinions need no guarantee. You don't have to defend the likable speaker or the "acceptable" speech in court, because the wheels of democracy make sure that popular, majority opinions don't end up in court. Always, you must defned the least likable, least appetizing opinions, for they are the ones most liable to restriction; they are the entry points through ignorance and repression will seep into a free society.
It is nothing, nothing to support the free speech of the people with whom you agree. The rubber really meets the road when you defend the people with whom you most vehemently disagree.
I have more faith in humanity than people who want to censor "hate speech" or "racist speech". I believe that if the facts are presented clearly and forcefully to the average Joe/Jane, he/she will choose the right way. So, if there's racist speech out there, counter it through speech of your own. Don't force your opponents to shut up; speak more loudly and more clearly than they. Of course, that takes work, skill, and dedication. And that's hard, so the human tendency is to seek the easy way out, to restrict a priori speech with which you disagree.
You know what? It does take effort, skill, and determination. Find a way to cope with it, because freedom is hard.
Our Bill of Rights does not say "presumed innocent" it only guarantees a fair trial, so that they can be convicted of only the crimes that they did commit.
I will leave aside the proposition -- recognized by at least some judges for a long time -- that the presumption of innocence is a prerequisite for a fair trial. Instead, I'd like to point out that the right to a fair trial must include the ability to exercise all of one's Constitutional rights to the fullest. The Fifth Amendment protects against coerced self-incrimination. The Sixth Amendment guarantees assistance of counsel. Unless one recognizes a very broad attorney-client privilege, those two rights cannot be simultaneously exercised. How can one fully utilize counsel -- how can one preserve the fairness of a trial -- while afraid that anything said to the attorney will become a part of the court record? How can you prevent self-incrimination and yet throw open any discussion with the attorney to full scrutiny? As is often the case, the courts have recognized that the exercise of explicit Constitutional rights sometimes entails the exercise of others, necessary for the first.
Even though the eavesdropping tapes would be inadmissable in court, they could still provide leads for other investigative teams to persue on other linked individuals.
And as soon as this becomes commonplace and known, defendants will stop speaking freely with their attorneys, for fear that something will come back to haunt them. And then the Sixth Amendment guarantee of counsel is meaningless, since an efficient and effective defense depends on the free flow of information between counsel and client.
Many of them are not completely innocent people, and most who are really innocent know information about the truly guilty. Silence and priveledge are preventing justice from being done
First of all, the DOJ has not given any evidence that attorney-client privilege is hampering justice. There is a bare assertion, but not a single instance wherein they can say, "Well, if we had had this power, the events of 9/11 would have been prevented".
Second, look how you have already tarred the detainees. Despite repeated claims that everyone deserves a fair trial, you have already declared them guilty, apparently because the federal government saw fit to pick them up. The legal system erects many checkpoints and barriers to the untrammeled exercise of prosecutorial power, precisely because this tendency is inherent in human beings.
Third, you seem willing to coerce even those you admit to be "really innocent". In other words, you're willing to hand over to the DOJ the ability to detain, to tape, and to harass people who are "really innocent" if the DOJ makes a simple assertion that these people might have information the DOJ desires. The proposed rule removes the courts from the process, eliminating the judicial oversight that is absolutely essential for preventing prosecutorial abuse.
For most of the people upset with this decision, it seems to me, the issue is not the possible abridgement of attorney-client privilege. It's the fact that the DOJ has moved this into an internal "administrative" policy, setting DOJ up as both the implementor and the evaluator of the situation. The DOJ has no role and no authority to decide constitutional questions, and certainly no authority to reduce constitutional guarantees, even in a crisis. That power is reserved to either Congress or to the courts, for good reason: The American system depends on external checks on the abuse of power by any government agency.
I'm not arguing that the DOJ will find the new rules more convenient. I'm just less interested in their convenience than the DOJ is. I put a higher value on the principles that make this nation a free and open land based on the rule of law -- the principles that make this nation worth defending. It seems to me that the current climate encourages people to sacrifice all that we are, to chase a chimera of physical safety.
Terrorists, especially foreign terrorists, have no Civil Liberties to be concerned with, as far as I and 99.9% of Americans are concerned.
Well, then you and 99.9% of Americans are wrong. The point of civil liberties are exactly that they apply to everyone: the innocent, the guilty, the slow, the rich, the poor. Every exclusion of a person from the scope of civil liberty demeans and endangers us all. The point is, we can allow fair trials and due process and still whip these guys. I believe that, because I believe in this country... not its economy or its geography or its military might, but its fundamental philosophical rightness: that these truths are universal and unalienable.
But even that isn't relevant, because this is applicable to suspects not convicted terrorists. That is, it's applicable even if the person in question has not been proved guilty of anything yet. It's applicable at the whim of an administrative panel, not after scrutiny by a judge. And that is an affront to the whole edifice of American justice.
The justice department's move is not at all controversial, unless you're one of those anti-American types who thought we got was coming to us 9/11.
Ah, the wonderful unbridled arrogance of slashdot! It certainly is controversial, if only in that it has generated controversy. Reasonable citizens obviously disagree on its appropriateness. And I'm not one who thinks "we got [what] was coming to us 9/11", but this move strikes me as both unnecessary and dangerous... not mention contemptuous of the Constitution these guys are hired to protect.
That's an exaggeration to make the point, but I think we can be a little flexible and recognize when very practical problems need a resolution, like terrorists using lawyers to plan their next attack. If we ever caught bin Laden and put him in jail, does anyone doubt that is exactly what would happen?
Um, I doubt it. I think many sane people doubt it. Do you think that guys like that will ever assume they are not being bugged, no matter what constitutional guarantees are declared? The effect of this is to chill attorney-client privilege in all cases for no demonstrable gain. The power to monitor exists already... it's just locked behind that quaint, old-fashioned stumbling block, judicial oversight.
The DOJ is proposing limiting a time-honored and well-established right. It's doing so despite the existence of mechanisms to achieve the stated ends. It's doing so without offering a single instance wherein this behavior has occured. It's doing so without offering a single instance wherein the new rules would have prevented a terrorist act. I believe it's reasonable to ask for proof and evidence before sacrificing a constitutional guarantee, even in a small way.
"The Justice Department said less than one-tenth of 1 percent of federal inmates are subject to the provision that allows such monitoring.
So with our current prison system, that's about what, 3 million prisoners?
In 2000, there were 145,416 prisoners in federal prisons. (http://www.ojp.usdoj.gov/bjs/pub/ascii/p00.txt). That translates to about 145 people affected... although this includes only prisoners, not detainees. Throw in the state prison population of 1,236,476, and you get 1380 affected people total.
A priveledge is something completely different. It is not enumerated in the Constitution or the Bill of Rights. You can check, Lawyer-Client priveledge is not in their. Priveledges are manifestations of custom that are expected, but not guaranteed.
Look, the use of "privilege" is not in the common English sense: "Come home on time, young man, or you'll lose your driving priveleges". It has a very specific definition, legally. I am no lawyer and what follows is just my impressions, but I expect that "privilege" (coming from the Latin for "private law") is related etymologically to "privy", as in "privy to a secret".
What this means is that a state religion cannot be established, but that no laws can prevent someone from praying in public. The removal of all things with religious connotations is a priveledge extended to the ACLU and litigious agnostics, and actually inpinges on a constitutional right.
Um, actually, federal case law is relatively clear on this: The state cannot organize religious displays; public funds -- collected compulsorily -- cannot be used to advance religion in general or a particular religion. People are free to pray in public, but for example, a school cannot organize a moment of prayer. Separation of church and state is a principle not a privilege, and it seems to me flows quite clearly from and is indeed found in, the non-establishment clause.
The poster nicely quotes the 5th and 6th Amendments for us, which do seem to be the most relevant. Then he/she says:
There's a lot of verbage to parse there, but you can plainly see that the word lawyer, attourney, barrister, soliciter, ombudsman, or advocate are nowhere to be found
Of course, the Sixth Amendment ends with, as the poster so clearly quoted, "to have the Assistance of Counsel for his defence". And "counsel" is, legally, a synonym for "lawyer, attorney, barrister, solicitor, ombudsman, and advocate". I think it's extremely disingenuous to argue that the Founders -- many of them, by the way, one or more of "lawyers, attorneys, barristers, solicitors, ombudsmen, or advocates" -- did not mean "lawyer" in this context.
It is a long-established and time-honored principle that the efficient and just operation of the courts demands a full and free flow of information between a client and his/her counsel. To that end, certain communications are deemed "privileged" and made unavailable to the prosecution (which normally has access to nigh-godlike powers of investigation and discovery). The common law has enshrined this right for 400 years. The federal courts have -- correctly, in my view -- found this right to be supplemental to the 6th Amendment (and, I believe, implicit in the 5th as well). Its use and implications were dealt with explicitly in the codification of the Rules of Evidence and its primacy established there. As with all constitutional rights, situations can be imagined wherein the exercise of the right needs to be curtailed in favor of an overwhelming social good... but as with all constitutional rights, the bar should be set pretty high before such curtailment takes place. "Reason to believe", decided by an administrative panel -- not a court! -- simply doesn't meet that high bar.
Also, a clause is contained explicitly permitting the removal of this right for military persons and for everyone in time of war or "Public Danger".
Such reasoning could lead to truly horrifying results. After all, as the folks in Washington have said unrelentingly, this conflict will be waged for many many years. Indeed, we will never again be so naive as to assume we are not in a time of "Public Danger". Does this mean we must jettison all the hard-won rights that have made America a free and open society boasting the longest-functioning written constitution and an impressive run of rule of law?
Happily, no. If you actually read the referenced Amendment, you see "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"
First, note how the exception is made only for the need for a Grand Jury. Other important freedoms are listed after the "time of war" restriction, and grammatically are not limited by it.
More importantly, it seems clear from the structure that the "in time of War or public danger" is meant to modify "in the Militia". The presumption was, all able-bodied men would be in the state militia; it was a duty of citizenship. Obviously, during peacetime, you wouldn't want to exclude such men from the protections of the Constitution; just as obviously, in time of War, you might need to move more expeditiously. It would make sense that men actively serving would be subject to military, not civil, justice.
But most importantly, look at that emphasized section. The only recognized restriction is during actual service, during a time of war or crisis. Look how hedged that restriction is... if the survival of the nation is at stake, we can relax constitutional guarantees a smidge. You don't lose the right to fair trial, or immunity from self-incrimination, or sanctity of your property, or protection against double jeopardy. All that you lose is the semi-redundant right to indictment by a Grand Jury. ("... Even a modestly competent district attorney can get a grand jury to indict a ham sandwich...")
It would seem to me that the Founders quite explicitly did not want to wrap constitutional guarantees -- including that of effective counsel -- under a boatload of proscriptions and restrictions.
From the article, it sounds like they're putting up a clear firewall between the observers and the prosecution team so that any evidence gained through these conversations cannot be admissible in court -- if they didn't, there's pretty much no way that I'd ever support this.
No, actually, it sounds like they say they're putting up a clear firewall. From her years as an assistant DA in Brooklyn, my sister has told me many, many stories about how the prosecution can use ill-gotten information in productive ways, even if it's formally barred from submission in evidence.
What the article actually makes clear is that they are tearing down a pretty clear firewall that exists, that between public safety and prosecutorial abuse. Currently they can achieve the desired monitoring anyway, by obtaining a court order. But first they have to convince a federal judge that the need is real and pressing.
Secretary Ashcroft seems to feel that the paramount obstacle to justice is the justice system itself. Every move he's made since 9/11 has been to reduce court oversight and make prosecutors and law enforcement even less accountable. He's done this despite having not a single shred of evidence that the American system of judicial oversight has facilitated terrorist acts in the least. He's done it because, apparently, he feels that rules only slow down a game.
I know a lot of people are saying, "Don't overreact, this isn't a police state." But with a guy like Ashcroft at the helm, and in times like these, I worry. I worry a lot.
Fair enough. But at least it's available for reference... if you assume people can be idiots but aren't (entirely) evil, you can always hope to rouse the population from its stupor by pointing out the inconsistencies between the written constitution and actual practice.
In the unwritten case, I think it's far too mutable. What's done becomes the constitution.
After WW1 Germany was forced to pay giant amounts of money to the allies, causing the effects of the world economic crisis to be felt much more intensely in Germany. Communists and fashists became very popular, and in the end Hitler gained domination.
Actually.... the story is more complicated when you read further into it. Weinberg does a wonderful job covering this in A World at Arms, and I won't do it justice. But the gist is: During WWI, what European country suffered no enemy action on its territory? What European nation maintained the highest standard of living during the war? What European nation finished the war actually improved in industrial standings vis a vis its competitiors?
Germany.
The Treaty of Versailles imposed harsh reparations. But some were canceled, some were repudiated by the Weimar government, and the rest were rendered essentially valueless by hyperinflation... hyperinflation that was encouraged by the German government, for precisely that purpose, as it turns out. For a defeated people, the Germans were treated reasonably well by the Allies. A few bruises on their ego, but remember: no one seriously even broached wholesale dismemberment of the German state.
Now, the harshness of the Treaty of Versailles -- on paper -- provided a convenient rallying cry for all sorts of nationalist movements, including Nazism. And the fact that the German army did not have to fight a long, bitter withdrawal through Germany allowed the myth to arise that the military never surrendered and that the civilian government "stabbed us in the back". But the reality is, Germany ended WWI stronger than it began.
By the way, this explains the long-recognized alleged "paradox": How did the Nazis -- one of the least effective governments, chaotic, disorganized, and openly contempuous of modern thinking -- turn a "beaten", "crippled" Germany into an industrial juggernaut that, quite nearly, conquered the world? Because in reality, Germany was far from crippled, even if they were beaten. The economic miracle is less a miracle when you understand the true state of the German economy.
That doesn't mean the Treaty of Versailles played no role. Its harshness did inflame German passions. Its failure did harden Allied resolve and shape post-War policy. But these were matters of perception, not fact. The upshot is: Politics is perception. A convenient myth trumps any number of inconvenient facts.
they have the right not to allow other browsers to render the content
Hmmm. This "right" drifts a little too close to an implied EULA for me to be comfortable. Would it be OK for MSN to have a page that says, "By accessing MSN.com you certify that you are using the latest version of Internet Explorer. All other browsers must exit."? I don't think that would go over well... but I might be wrong.
That will make a helluva lot of small sites innaccessable to non-ms browsers.
And then comes the tussle: Do end users start switching to IE to see those pages, or do those small sites vanish from the Web since a large audience cannot see them?
This will be a big test for MS' marketing division. Let's see if they're really dominant. I generally avoid sites that demand IE to look nice. I know I won't visit those that demand IE to be used at all.
I thought that Microsoft was a big propenent of screwing the little guy over
And in the spirit of keeping an open mind, maybe, just maybe, you've been reading bashdot too much and listening to too much propaganda, and maybe, just maybe, Microsoft isn't the enemy that you thought they were...
I've just reduced the value of your music to zero, because I can spread it far and wide.
That would be because the actual value of the music is zero, in plain and simple economic terms. Copyright exists -- allegedly -- to artificially raise the value from zero to enough to induce people to share their creations. As such, a very reasonable argument can be made that it is not stealing, even though infringement is illegal.
The language does matter. Copyright infringement is illegal and, generally, wrong as well. But it is not stealing, it is not theft, and it is most certainly not piracy... last time I checked, Napster didn't encourage rape and pillage on the high seas.
How is a domain name more "abstract" than a trademark, a patent or a musical copyright? I think the entire basis of your post is flawed and the conclusions it comes to are flawed also.
I'm not the original poster, but I expect he/she would actually agree with you... he/she would say that trademarks, patents, and copyrights aren't "property" either. This is not the usual position but it is a defensible one.
The alleged similarities between domain names and trademarks, IMHO, serve more to confuse the issues than clarify them. You can register the same trademark as someone else, as long as the two don't compete directly. Modern megacorps seems to feel that the Net is ephemeral enough that confusion between markedly different products is easy, but solid enough that traditional property law can be applied.
I'm glad that WIPO might be waking up to the fact that you can't have it both ways.
Nearly all of the examples, I believe, involve insurgent forces supplied by an outside power during the conflict. I'm tired of hearing how wonderful, for example, the Mujahedeen were at resisting the Soviets without anyone commenting how they got their behinds kicked for the first few years, until the US supplied them with Stinger missiles.
It was not rifle fire that brought down the Soviets. It was the ability of the Stingers to deprive them of air transport... a capability the Afghans would not have had on their own.
The other examples mentioned were colonial adventures or foreign wars, and shows nothing about the ability of an armed US population to "deter" US government policies at home. It's quite clear the Viet Cong didn't beat "the US Army". They beat the fraction of the Army that was deployed to fight them, most of the military being constrained politically and physically by the rest of the world situation. In the fevered apocalyptic world in which the evil US Army is resisted by a band of freedom-loving ordinary citzens, we're no longer talking about a politically constrained Army. The assumption always seems to be that the US government "has gone too far" and is willing to contemplate massive force against its own citizens to enforce some policy. In such a world, the kid gloves would be off and you wouldn't be facing a leased dog. The ordinary citizens would be facing the full might of the Army.
Ask the militiamen from a few years back how successful their plan of armed resistance was. How about that guy who declared a Free State and insisted on his right to print money, etc.? Having the guns doesn't really seem to get things done after all.
I would be willing to bet that, when passing a tax package, not a single Representative says, "Oh, wait. What if my constituents take to the hills as partisans?" In an established democracy such as the US -- especially a nuclear one -- the best "deterrent" is the ballot, not the bullet. People make decisions on electability, not survivability. And thank God for that.
Since declarations of war are a power of the Senate, acting as if such a declaration existed when in fact it did not would be a matter of executive encroachment on the Senate; i.e., the Senate would have to sue the President in order for the Supreme Court's requirement of standing to be fulfilled.
So, the idea that I'm a citizen and my President has unconstitutionally declared war -- exposing me to war taxes, suspension of liberties, and, conceivably, death in a foreign land -- does not give me "standing" in this issue?
Perhaps a the most significant reason to support the Second Amendment.
Otherwise, someone better armed than you will take away your rights.
I see the reasoning but have never understood the logic. A bunch of shotguns is no match for the US government in any event... or have you been stockpiling nukes and not telling anyone? I fail to see how any collection of ordinary citizens is going to be "better armed" than the United States Army.
The damage those two traitors of the Constitution created back then has manifested itself in an aweful place to live in today.
Assuming, from text, you meant "awful" (as in horrible) and not "aweful" (as in full of awe and wonder), I still find it sort of ironic of calling Lincoln a traitor to the Constitution when, in fact, he nigh-singlehandedly created the philosophical backdrop against which most of these debates take place.
alows the army to operate on US soil which it is not constitutionaly allowed to
Um, I know the CIA is not chartered to operate within US territory, but I've never heard the armed forces are under the same ban. Sort of makes all those bases and airfields silly, doesn't it?
Searching through the long article... So, michael & co, would you please read the f*****g article before posting garbage next time?
Perhaps this indicates why one should take one's own advice and read the article rather than merely "search through" it. For anyone who's not totally humor-impaired, it was immediately clear that the entire article was made up for comic effect.
The Ravens coach didn't really blame Linux. OK?
Now, a lot of people are coming down on the editors for even posting this, but I'm not one of them. There are at least two good reasons for linking through to this artice:
It shows that Linux is percolating in the common consciousness sufficiently (a) for a sportswriter to be aware of it and (b) for said sportswriter to believe it a useful reference for his readers.
It was humourous. A lot of people have been forgetting, lately, that a core strength of geekdom is its sense of humor. It's OK to poke fun at us, because we can take it. Or, to quote Michael Garibaldi, "Geez. It's not like every conversation has to be about the end of the world as we know it."
Slashdot Mirror
Indeed. And the most grevious harm that can be done to a community through speech is the repression of any of it. Only if all people are free to speak their minds on all topics, without prior restraint or fear of governmental retribution, is a nation free. The lesson drawn from history is that any restraint of speech based on content, no matter how well-intentioned, is corrosive to the freedom of the people involved.
Not entirely true -- Canada has similar guarantees, as does Australia, I believe -- but the poster is right on one count: Only in the United States has this ptinciple been raised to an absolute. Through either foresight or a beneficial quirk of history, in the States, this right is enshrined in the First Amendment: with connotations not just of "earliest" but also "primary".
The trade secret laws deal with speech not as speech but as theft of property. One can argue that ideas cannot be property -- I do -- but the restraint of discussion of trade secrets is not based on the content of the secrets but on the fact of their secrecy (and economic worth). That's why it's legal to distrubte trade "secrets" that are publicly available elsewhere.
Likewise the laws on slander deal not with the content of the slander but on the veracity. Uniquely in the United States (I believe), winning a slander or libel case requires demonstration that the statement made was untrue, not merely that it was "harmful". That bar is much higher than in any other nation in the world. Why? Because courts have ruled that slander and libel suits all too easily chill the exercise of free speech, and that the nation has an interest in protecting the dessimination of true information. Informtation that is demonstrably untrue has less social value and can be actionable... but the presumption is, more discussion is better.
Here's a lesson too often left unlearned in "free" countires (sadly, including too much of the USA): Freedom is hard. That's why it's so rare in hisotry. Freedom means putting up with people with whom you disagree, people who set your teeth on edge, people who violate your most cherished beliefs. Freedom means offering to others all the rights you expect for yourself, and more. Freedom means allowing the possibility, no matter how remote, that you are wrong on something. Further, it means accepting that even if you are right and someone else is wrong, that person has the right to live his/her life as he/she sees fit.
Popular causes need no protection. Majority opinions need no guarantee. You don't have to defend the likable speaker or the "acceptable" speech in court, because the wheels of democracy make sure that popular, majority opinions don't end up in court. Always, you must defned the least likable, least appetizing opinions, for they are the ones most liable to restriction; they are the entry points through ignorance and repression will seep into a free society.
It is nothing, nothing to support the free speech of the people with whom you agree. The rubber really meets the road when you defend the people with whom you most vehemently disagree.
I have more faith in humanity than people who want to censor "hate speech" or "racist speech". I believe that if the facts are presented clearly and forcefully to the average Joe/Jane, he/she will choose the right way. So, if there's racist speech out there, counter it through speech of your own. Don't force your opponents to shut up; speak more loudly and more clearly than they. Of course, that takes work, skill, and dedication. And that's hard, so the human tendency is to seek the easy way out, to restrict a priori speech with which you disagree.
You know what? It does take effort, skill, and determination. Find a way to cope with it, because freedom is hard .
I will leave aside the proposition -- recognized by at least some judges for a long time -- that the presumption of innocence is a prerequisite for a fair trial. Instead, I'd like to point out that the right to a fair trial must include the ability to exercise all of one's Constitutional rights to the fullest. The Fifth Amendment protects against coerced self-incrimination. The Sixth Amendment guarantees assistance of counsel. Unless one recognizes a very broad attorney-client privilege, those two rights cannot be simultaneously exercised. How can one fully utilize counsel -- how can one preserve the fairness of a trial -- while afraid that anything said to the attorney will become a part of the court record? How can you prevent self-incrimination and yet throw open any discussion with the attorney to full scrutiny? As is often the case, the courts have recognized that the exercise of explicit Constitutional rights sometimes entails the exercise of others, necessary for the first.
And as soon as this becomes commonplace and known, defendants will stop speaking freely with their attorneys, for fear that something will come back to haunt them. And then the Sixth Amendment guarantee of counsel is meaningless, since an efficient and effective defense depends on the free flow of information between counsel and client.
First of all, the DOJ has not given any evidence that attorney-client privilege is hampering justice. There is a bare assertion, but not a single instance wherein they can say, "Well, if we had had this power, the events of 9/11 would have been prevented".
Second, look how you have already tarred the detainees. Despite repeated claims that everyone deserves a fair trial, you have already declared them guilty, apparently because the federal government saw fit to pick them up. The legal system erects many checkpoints and barriers to the untrammeled exercise of prosecutorial power, precisely because this tendency is inherent in human beings.
Third, you seem willing to coerce even those you admit to be "really innocent". In other words, you're willing to hand over to the DOJ the ability to detain, to tape, and to harass people who are "really innocent" if the DOJ makes a simple assertion that these people might have information the DOJ desires. The proposed rule removes the courts from the process, eliminating the judicial oversight that is absolutely essential for preventing prosecutorial abuse.
For most of the people upset with this decision, it seems to me, the issue is not the possible abridgement of attorney-client privilege. It's the fact that the DOJ has moved this into an internal "administrative" policy, setting DOJ up as both the implementor and the evaluator of the situation. The DOJ has no role and no authority to decide constitutional questions, and certainly no authority to reduce constitutional guarantees, even in a crisis. That power is reserved to either Congress or to the courts, for good reason: The American system depends on external checks on the abuse of power by any government agency.
I'm not arguing that the DOJ will find the new rules more convenient. I'm just less interested in their convenience than the DOJ is. I put a higher value on the principles that make this nation a free and open land based on the rule of law -- the principles that make this nation worth defending. It seems to me that the current climate encourages people to sacrifice all that we are, to chase a chimera of physical safety.
Well, then you and 99.9% of Americans are wrong. The point of civil liberties are exactly that they apply to everyone: the innocent, the guilty, the slow, the rich, the poor. Every exclusion of a person from the scope of civil liberty demeans and endangers us all. The point is, we can allow fair trials and due process and still whip these guys. I believe that, because I believe in this country... not its economy or its geography or its military might, but its fundamental philosophical rightness: that these truths are universal and unalienable.
But even that isn't relevant, because this is applicable to suspects not convicted terrorists. That is, it's applicable even if the person in question has not been proved guilty of anything yet. It's applicable at the whim of an administrative panel, not after scrutiny by a judge. And that is an affront to the whole edifice of American justice.
Ah, the wonderful unbridled arrogance of slashdot! It certainly is controversial, if only in that it has generated controversy. Reasonable citizens obviously disagree on its appropriateness. And I'm not one who thinks "we got [what] was coming to us 9/11", but this move strikes me as both unnecessary and dangerous
Hey, don't blame me. I voted for Bartlet. :)
Um, I doubt it. I think many sane people doubt it. Do you think that guys like that will ever assume they are not being bugged, no matter what constitutional guarantees are declared? The effect of this is to chill attorney-client privilege in all cases for no demonstrable gain. The power to monitor exists already... it's just locked behind that quaint, old-fashioned stumbling block, judicial oversight
The DOJ is proposing limiting a time-honored and well-established right. It's doing so despite the existence of mechanisms to achieve the stated ends. It's doing so without offering a single instance wherein this behavior has occured. It's doing so without offering a single instance wherein the new rules would have prevented a terrorist act. I believe it's reasonable to ask for proof and evidence before sacrificing a constitutional guarantee, even in a small way.
In 2000, there were 145,416 prisoners in federal prisons. (http://www.ojp.usdoj.gov/bjs/pub/ascii/p00.txt). That translates to about 145 people affected
I'd say that's a lot.
Look, the use of "privilege" is not in the common English sense: "Come home on time, young man, or you'll lose your driving priveleges". It has a very specific definition, legally. I am no lawyer and what follows is just my impressions, but I expect that "privilege" (coming from the Latin for "private law") is related etymologically to "privy", as in "privy to a secret".
Um, actually, federal case law is relatively clear on this: The state cannot organize religious displays; public funds -- collected compulsorily -- cannot be used to advance religion in general or a particular religion. People are free to pray in public, but for example, a school cannot organize a moment of prayer. Separation of church and state is a principle not a privilege, and it seems to me flows quite clearly from and is indeed found in, the non-establishment clause.
The poster nicely quotes the 5th and 6th Amendments for us, which do seem to be the most relevant. Then he/she says:
Of course, the Sixth Amendment ends with, as the poster so clearly quoted, "to have the Assistance of Counsel for his defence". And "counsel" is, legally, a synonym for "lawyer, attorney, barrister, solicitor, ombudsman, and advocate". I think it's extremely disingenuous to argue that the Founders -- many of them, by the way, one or more of "lawyers, attorneys, barristers, solicitors, ombudsmen, or advocates" -- did not mean "lawyer" in this context.
It is a long-established and time-honored principle that the efficient and just operation of the courts demands a full and free flow of information between a client and his/her counsel. To that end, certain communications are deemed "privileged" and made unavailable to the prosecution (which normally has access to nigh-godlike powers of investigation and discovery). The common law has enshrined this right for 400 years. The federal courts have -- correctly, in my view -- found this right to be supplemental to the 6th Amendment (and, I believe, implicit in the 5th as well). Its use and implications were dealt with explicitly in the codification of the Rules of Evidence and its primacy established there. As with all constitutional rights, situations can be imagined wherein the exercise of the right needs to be curtailed in favor of an overwhelming social good... but as with all constitutional rights, the bar should be set pretty high before such curtailment takes place. "Reason to believe", decided by an administrative panel -- not a court! -- simply doesn't meet that high bar.
Such reasoning could lead to truly horrifying results. After all, as the folks in Washington have said unrelentingly, this conflict will be waged for many many years. Indeed, we will never again be so naive as to assume we are not in a time of "Public Danger". Does this mean we must jettison all the hard-won rights that have made America a free and open society boasting the longest-functioning written constitution and an impressive run of rule of law?
Happily, no. If you actually read the referenced Amendment, you see "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"
First, note how the exception is made only for the need for a Grand Jury. Other important freedoms are listed after the "time of war" restriction, and grammatically are not limited by it.
More importantly, it seems clear from the structure that the "in time of War or public danger" is meant to modify "in the Militia". The presumption was, all able-bodied men would be in the state militia; it was a duty of citizenship. Obviously, during peacetime, you wouldn't want to exclude such men from the protections of the Constitution; just as obviously, in time of War, you might need to move more expeditiously. It would make sense that men actively serving would be subject to military, not civil, justice.
But most importantly, look at that emphasized section. The only recognized restriction is during actual service, during a time of war or crisis. Look how hedged that restriction is
It would seem to me that the Founders quite explicitly did not want to wrap constitutional guarantees -- including that of effective counsel -- under a boatload of proscriptions and restrictions.
No, actually, it sounds like they say they're putting up a clear firewall. From her years as an assistant DA in Brooklyn, my sister has told me many, many stories about how the prosecution can use ill-gotten information in productive ways, even if it's formally barred from submission in evidence.
What the article actually makes clear is that they are tearing down a pretty clear firewall that exists, that between public safety and prosecutorial abuse. Currently they can achieve the desired monitoring anyway, by obtaining a court order. But first they have to convince a federal judge that the need is real and pressing.
Secretary Ashcroft seems to feel that the paramount obstacle to justice is the justice system itself. Every move he's made since 9/11 has been to reduce court oversight and make prosecutors and law enforcement even less accountable. He's done this despite having not a single shred of evidence that the American system of judicial oversight has facilitated terrorist acts in the least. He's done it because, apparently, he feels that rules only slow down a game.
I know a lot of people are saying, "Don't overreact, this isn't a police state." But with a guy like Ashcroft at the helm, and in times like these, I worry. I worry a lot.
In the unwritten case, I think it's far too mutable. What's done becomes the constitution.
Forgive the Americanism, but a non-written Constitution isn't worth the paper it's written on.
Actually.... the story is more complicated when you read further into it. Weinberg does a wonderful job covering this in A World at Arms, and I won't do it justice. But the gist is: During WWI, what European country suffered no enemy action on its territory? What European nation maintained the highest standard of living during the war? What European nation finished the war actually improved in industrial standings vis a vis its competitiors?
Germany.
The Treaty of Versailles imposed harsh reparations. But some were canceled, some were repudiated by the Weimar government, and the rest were rendered essentially valueless by hyperinflation
Now, the harshness of the Treaty of Versailles -- on paper -- provided a convenient rallying cry for all sorts of nationalist movements, including Nazism. And the fact that the German army did not have to fight a long, bitter withdrawal through Germany allowed the myth to arise that the military never surrendered and that the civilian government "stabbed us in the back". But the reality is, Germany ended WWI stronger than it began.
By the way, this explains the long-recognized alleged "paradox": How did the Nazis -- one of the least effective governments, chaotic, disorganized, and openly contempuous of modern thinking -- turn a "beaten", "crippled" Germany into an industrial juggernaut that, quite nearly, conquered the world? Because in reality, Germany was far from crippled, even if they were beaten. The economic miracle is less a miracle when you understand the true state of the German economy.
That doesn't mean the Treaty of Versailles played no role. Its harshness did inflame German passions. Its failure did harden Allied resolve and shape post-War policy. But these were matters of perception, not fact. The upshot is: Politics is perception. A convenient myth trumps any number of inconvenient facts.
Ah, only because your garage hasn't discovered the joys of the End User License Agreement.
Yet.
Hmmm. I sometimes hear voices but last time I checked, I was still one person. Is there someone else on slashdot using this? I haven't run across it.
And, of course, I will keep using it despite rants telling not to. In fact, I keep using it due to rants telling me not to.
It doesn't really matter to me but it's amusing how worked up some people get...
Hmmm. This "right" drifts a little too close to an implied EULA for me to be comfortable. Would it be OK for MSN to have a page that says, "By accessing MSN.com you certify that you are using the latest version of Internet Explorer. All other browsers must exit."? I don't think that would go over well... but I might be wrong.
And then comes the tussle: Do end users start switching to IE to see those pages, or do those small sites vanish from the Web since a large audience cannot see them?
This will be a big test for MS' marketing division. Let's see if they're really dominant. I generally avoid sites that demand IE to look nice. I know I won't visit those that demand IE to be used at all.
Hmmm.... Could be...
Nah, never happen.
:)
That would be because the actual value of the music is zero, in plain and simple economic terms. Copyright exists -- allegedly -- to artificially raise the value from zero to enough to induce people to share their creations. As such, a very reasonable argument can be made that it is not stealing, even though infringement is illegal.
The language does matter. Copyright infringement is illegal and, generally, wrong as well. But it is not stealing, it is not theft, and it is most certainly not piracy... last time I checked, Napster didn't encourage rape and pillage on the high seas.
I'm not the original poster, but I expect he/she would actually agree with you... he/she would say that trademarks, patents, and copyrights aren't "property" either. This is not the usual position but it is a defensible one.
The alleged similarities between domain names and trademarks, IMHO, serve more to confuse the issues than clarify them. You can register the same trademark as someone else, as long as the two don't compete directly. Modern megacorps seems to feel that the Net is ephemeral enough that confusion between markedly different products is easy, but solid enough that traditional property law can be applied.
I'm glad that WIPO might be waking up to the fact that you can't have it both ways.
It was not rifle fire that brought down the Soviets. It was the ability of the Stingers to deprive them of air transport
The other examples mentioned were colonial adventures or foreign wars, and shows nothing about the ability of an armed US population to "deter" US government policies at home. It's quite clear the Viet Cong didn't beat "the US Army". They beat the fraction of the Army that was deployed to fight them, most of the military being constrained politically and physically by the rest of the world situation. In the fevered apocalyptic world in which the evil US Army is resisted by a band of freedom-loving ordinary citzens, we're no longer talking about a politically constrained Army. The assumption always seems to be that the US government "has gone too far" and is willing to contemplate massive force against its own citizens to enforce some policy. In such a world, the kid gloves would be off and you wouldn't be facing a leased dog. The ordinary citizens would be facing the full might of the Army.
Ask the militiamen from a few years back how successful their plan of armed resistance was. How about that guy who declared a Free State and insisted on his right to print money, etc.? Having the guns doesn't really seem to get things done after all.
I would be willing to bet that, when passing a tax package, not a single Representative says, "Oh, wait. What if my constituents take to the hills as partisans?" In an established democracy such as the US -- especially a nuclear one -- the best "deterrent" is the ballot, not the bullet. People make decisions on electability, not survivability. And thank God for that.
So, the idea that I'm a citizen and my President has unconstitutionally declared war -- exposing me to war taxes, suspension of liberties, and, conceivably, death in a foreign land -- does not give me "standing" in this issue?
You gotta love the Court.
I see the reasoning but have never understood the logic. A bunch of shotguns is no match for the US government in any event... or have you been stockpiling nukes and not telling anyone? I fail to see how any collection of ordinary citizens is going to be "better armed" than the United States Army.
Assuming, from text, you meant "awful" (as in horrible) and not "aweful" (as in full of awe and wonder), I still find it sort of ironic of calling Lincoln a traitor to the Constitution when, in fact, he nigh-singlehandedly created the philosophical backdrop against which most of these debates take place.
If the ends can never justify the means, what can?
Um, I know the CIA is not chartered to operate within US territory, but I've never heard the armed forces are under the same ban. Sort of makes all those bases and airfields silly, doesn't it?
Perhaps this indicates why one should take one's own advice and read the article rather than merely "search through" it. For anyone who's not totally humor-impaired, it was immediately clear that the entire article was made up for comic effect.
The Ravens coach didn't really blame Linux. OK?
Now, a lot of people are coming down on the editors for even posting this, but I'm not one of them. There are at least two good reasons for linking through to this artice: